[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




                               before the


                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION


                             MARCH 29, 2000


                           Serial No. 106-177


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


68-877                     WASHINGTON : 2001

 For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: (202) 512-1800  Fax: (202) 512-2250
               Mail: Stop SSOP, Washington, DC 20402-0001


                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
           David A. Kass, Deputy Counsel and Parliamentarian
                    Lisa Smith Arafune, Chief Clerk
                 Phil Schiliro, Minority Staff Director

                   Subcommittee on the Civil Service

                   JOE SCARBOROUGH, Florida, Chairman
ASA HUTCHINSON, Arkansas             ELIJAH E. CUMMINGS, Maryland
JOHN L. MICA, Florida                    DC
DAN MILLER, Florida                  THOMAS H. ALLEN, Maine

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
                      Garry Ewing, Staff Director
                 Susan Waren, Professional Staff Member
                         Bethany Jenkins, Clerk
            Tania Shand, Minority Professional Staff Member

                            C O N T E N T S

Hearing held on March 29, 2000...................................     1
Statement of:
    Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel, 
      U.S. Air Force; Joe McDade, Assistant General Counsel, 
      Office of the Secretary of the Air Force; Cynthia 
      Hallberlin, Chief Counsel of Alternative Dispute Resolution 
      Program, National Program Manager of REDRESS, U.S. Postal 
      Service; and Gerald R. Reed, president, Blacks in 
      Government.................................................   104
    Hadden, Carlton, Acting Director of Federal Operations, Equal 
      Employment Opportunity Commission; and Michael Brostek, 
      Associate Director, Federal Management and Workforce 
      Issues, U.S. General Accounting Office.....................    16
    Wynn, Hon. Albert R., a Representative in Congress from the 
      State of Maryland..........................................     6
Letters, statements, et cetera, submitted for the record by:
    Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel, 
      U.S. Air Force, prepared statement of......................   107
    Brostek, Michael, Associate Director, Federal Management and 
      Workforce Issues, U.S. General Accounting Office:
        Followup questions and responses.........................    98
        Prepared statement of....................................    35
    Hadden, Carlton, Acting Director of Federal Operations, Equal 
      Employment Opportunity Commission:
        Followup questions and responses.........................    62
        Prepared statement of....................................    19
    Hallberlin, Cynthia, Chief Counsel of Alternative Dispute 
      Resolution Program, National Program Manager of REDRESS, 
      U.S. Postal Service, prepared statement of.................   122
    Reed, Gerald R., president, Blacks in Government, prepared 
      statement of...............................................   129
    Scarborough, Hon. Joe, a Representative in Congress from the 
      State of Florida, prepared statement of....................     3
    Wynn, Hon. Albert R., a Representative in Congress from the 
      State of Maryland, prepared statement of...................     9



                       WEDNESDAY, MARCH 29, 2000

                  House of Representatives,
                 Subcommittee on the Civil Service,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:15 a.m., in 
room 2247, Rayburn House Office Building, Hon. Joe Scarborough 
(chairman of the subcommittee) presiding.
    Present: Representatives Scarborough, Cummings, Norton, and 
    Staff present: Garry Ewing, staff director; Jennifer 
Hemingway, deputy staff director; Miguel Serrano, chief 
counsel; Susan Waren, professional staff member; Bethany 
Jenkins, clerk; Tania Shand, minority professional staff 
member; and Earley Green, minority assistant clerk.
    Mr. Scarborough. I call this hearing to order for the 
Subcommittee on the Civil Service.
    I would like to welcome all of you here before this Civil 
Service Subcommittee.
    Today, the subcommittee is going to be conducting an 
oversight hearing to examine serious shortcomings in Equal 
Employment Opportunity data and complaint processing. These 
problems were revealed in several recent reports issued by the 
General Accounting Office, and we will also consider the use of 
alternative dispute resolution techniques to resolve employee's 
discrimination complaints.
    As chairman of this subcommittee I am committed, like I 
know everybody else on this panel is committed, to ensuring 
that Federal employees have available a procedure for resolving 
EEO complaints that is fair, timely, and efficient, but that is 
just not simply the case today.
    I think all of us are concerned and appalled at the time it 
takes for an EEO complaint to travel through the entire appeals 
procedure process. According to GAO, an employee who has filed 
an initial complaint with his or her employing agency would, on 
average, have to wait 3 years until EEOC issues its final 
ruling. That is simply not acceptable. EEOC and other agencies 
have to figure out a way to speed this process up.
    I am also concerned that EEOC cannot answer fundamental 
questions about the nature and extent of workplace conflicts. 
Because EEOC does not collect and report the necessary data, it 
cannot respond to such basic questions regarding how many 
individuals have filed complaints, how many complaints allege 
discrimination based on race or sex, or what kinds of actions 
give rise to most of the complaints. And, to compound these 
problems, GAO also tells us that the reliability of data that 
EEOC collects from other agencies is also questionable. This is 
because the agencies don't report the data consistently, 
completely, or, in my opinion, accurately.
    In one example, because of a computer programming error, 
the Postal Service reported that approximately 68 percent of 
its complaints were from white postal workers claiming racial 
discrimination. In fact, the correct figure was 11.4 percent.
    Without solid, reliable data, neither the EEOC or employing 
agencies can understand how much conflict there is in the 
Federal work force or what causes it, and if they can't do it, 
then certainly Congress can't do it.
    We are going to be looking to the EEOC to assure this 
subcommittee that it is reducing its case inventories and 
processing complaints more quickly. I also want to know what 
EEOC is doing to increase the speed with which employing 
agencies process complaints of discrimination. And I am going 
to expect the EEOC to assure us that data problems that the GAO 
has discovered and revealed are going to be corrected in the 
    On a more optimistic note, we are also going to be 
examining the use of alternative dispute resolution, techniques 
to resolve workplace disputes.
    Based upon work GAO has performed for this committee in the 
past, we believe that ADR promises much hope. Used properly, 
ADR can deliver prompt solutions for a wide variety of 
workplace disputes that employees and managers, alike, perceive 
to be fair. It also is generally believed to be far less costly 
than litigation or a more formal redress process.
    Witnesses from the Postal Service and the Air Force will 
describe their successful ADR programs, and I look forward to 
their comments and the comments of GAO and other witnesses on 
this subject, as well.
    [The prepared statement of Hon. Joe Scarborough follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.001
    [GRAPHIC] [TIFF OMITTED] T8877.002
    Mr. Scarborough. With that, I would like to recognize Mr. 
Cummings, the distinguished ranking member, for any opening 
comments he may have.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    I do appreciate the fact that you have called this hearing. 
I know we will be hearing from Congressman Wynn, but I want to 
thank you for all your efforts over the years in staying on 
this issue and making sure it stays at the forefront of our 
    Mr. Chairman, you just said something that made me really 
stray away from my prepared comments when you talked about the 
3-year delay. Someone once said, ``Justice delayed is justice 
denied,'' and I think that when you think about the issues that 
we are addressing here today, when you have someone who is 
denied justice and they have to wait, and that justice is 
delayed and they have to wait 3 years, that means that possibly 
a pay raise doesn't take effect, it means that possibly the 
children who were in the first grade at the beginning of the 
complaint are now in the fourth grade and have missed 
opportunities to do such things as have simple things like 
violin lessons and simple things that make life better, going 
on vacation. But it also means that someone is placed in a 
position of being very frustrated over a course of 3 years, and 
that frustration not only affects them but affects their 
families and affects generations yet unborn.
    And so it does concern me, and I guess, as I am sitting 
here--and I am sure you and I agree on the frustration that we 
so often feel in the Congress where one group blames another 
group, and then another group blames another group, but the 
bottom line is, when all the dust settles, the problem is still 
    I am very, very confident and I do agree with you that we 
have to get to the bottom of this, because, after all, we have 
been elected to represent the wonderful people of the United 
States of America, and if we can't get to the bottom of it 
because an agency can't get to the bottom of it, we don't need 
to be here.
    And so I am hoping that the answers that we will get this 
morning are ones that will be helpful to us in getting to the 
bottom line.
    I do thank you, Mr. Chairman, for your sensitivity with 
regard to this issue. These are not in my prepared comments, 
but the more I listen and I look at Congressman Wynn and I 
think about all that he has gone through, and feeling, I am 
sure, the frustration sometimes that everything is not--I mean, 
he is almost playing a shell game. One person tells him one 
thing. I have been in the room many times when that has 
happened. You begin to wonder whether you are crazy or somebody 
else is. But at the same time we are wondering these things, 
there are people who are suffering.
    That is one of the good things about this hearing. As we 
notice--I know you noticed coming in, there are people standing 
all out in the halls. The reason why they are standing out 
there is because they simply want fairness. They simply want 
fairness. They don't want anybody to do them any favors. They 
just want fairness in the system. They don't want justice 
delayed. They don't want it, because they know that is justice 
    And so with that, Mr. Chairman, I look forward to hearing 
from the witnesses, and I want to thank all of them for being 
with us today.
    Mr. Scarborough. Thank you, Congressman Cummings.
    Thanks for your hard work on this. I know you and 
Congressman Wynn have fought this issue for some time.
    With that, I want to introduce our first panel. Our first 
witness today is the distinguished gentleman from Maryland, 
Representative Albert R. Wynn. Mr. Wynn represents the 4th 
District and he is well-known as an advocate for Federal 
employees. In addition, he, along with the ranking member, Mr. 
Cummings, asked GAO to study the EEOC's data collection and 
case processing problems. Those studies and their continued 
efforts are what led to today's hearings.
    Congressman Wynn.

                   FROM THE STATE OF MARYLAND

    Mr. Wynn. Thank you very much, Mr. Chairman.
    I sincerely appreciate your calling this hearing today. As 
my colleague, Mr. Cummings, indicated, this is a very, very 
important issue to us.
    I also appreciate your comments in your opening statement, 
which reflect a fundamental understanding of the various 
aspects of this problem and your sensitivity to this problem. I 
think all Federal employees appreciate your leadership in this 
    I also want to thank my colleague from Maryland, Mr. 
Cummings. We have literally worked side-by-side, yoked together 
on this issue, and he has been tremendous, from our first press 
conversation back in 1997, when we began talking about this 
issue, through today, when he has worked in his official 
capacity as ranking member to see that this issue is brought to 
light appropriately, and he brings a great deal of not only 
interest but passion to the discussion.
    As he indicated, there is a human element of this that 
affects people that is below the radar of our policy 
discussions, and it is important that that perspective be 
brought to light.
    Let me begin with a little history. We have always looked 
to the Federal Government to intervene in civil rights issues, 
and it became very ironic, after I got to Congress, that there 
were some civil rights issues within the Federal workplace. We 
had a festering sore, so to speak, in our own back yard.
    I represent more Federal employees than any other Member of 
Congress. I have 72,000 active Federal employees in my 
constituency, so, as you might gather, these issues of the 
Federal employee rights, benefits, and problems come to my desk 
quite frequently.
    I came in in 1992. By 1993, I began to see patterns in 
which I was getting enormous numbers of constituent complaints 
about discrimination in the Federal workplace. I had 
discussions with the National Institutes of Health, I have had 
ongoing discussions with the Department of Interior, 
Agriculture, State, Commerce, the Government Printing Office, 
the Library of Congress, IRS, U.S. Information Agency--the list 
goes on and on.
    What I concluded was that these were not isolated 
incidents, but rather a systemic problem, because I was hearing 
the same kinds of things throughout virtually every department.
    As I indicated, in 1997 we held a press conference on 
discrimination in the workplace, and I stood side by side with 
Mr. Cummings. We talked about three issues: the lack of 
diversity in senior management; second, the pervasive and 
discriminatory misuse of personnel laws; and, third, the 
enormous backlog of EEO complaints within Federal agencies.
    We asked the administration to intervene and make agencies 
more accountable, and in 1997, in September of that year, this 
subcommittee held an unprecedented hearing to examine the 
issues of discrimination--again, a standing-room-only audience. 
We talked about the various problems that existed.
    In 1998, I requested, along with Congressman Cummings, that 
GAO analyze the information about what we call ``inventories of 
unresolved complaints.'' I like to call it ``backlogs.'' And 
they did this, and the report, ``Equal Employment Opportunity: 
Rising Trends in EEO Complaint Case Loads in the Federal 
Sector,'' dated July 1998, found the agency complaint 
inventories, and, even more so, EEO's hearing and appeal 
inventories had increased since 1991.
    Since 1991, there has been 102 percent increase in the 
number of unresolved complaints, from 16,900 in 1991 to 34,000 
by the end of 1997.
    At EEO, itself, during this period, the inventory of 
hearing requests from complaints increased 218 percent, from 
3,000 to over 10,000, and the inventory of appeals or the 
backlog of appeals filed by complaints increased 581 percent, 
from 1,000 to almost 10,000.
    As you can imagine, as the size of these inventories grow, 
the length of time that you referred to in your opening 
statement increased, as well.
    As I looked at these problems after receiving this 
information, I said, ``It is not enough to just handle 
individual complaints. We need to begin to understand, as 
policymakers, what is causing these complaints.''
    And so I asked GAO essentially two questions: one, what 
were the statutory bases for discrimination? Was it race, sex, 
disability discrimination? And, two, what are the kinds of 
problems that are cited in these complaints? Was it non-
selection for promotion, harassment, hostile work environment, 
whatever might be the case?
    In March 1999, GAO advised me that they could not answer 
these fundamental questions. Obviously, I was quite concerned, 
which gave rise to the report that you mentioned in your 
opening statement, ``Equal Employment Opportunity Data 
Collection Shortcomings Hinder the Assessment of Conflicts in 
the Federal Workplace,'' which came out in May 1999.
    They found that data about the basis of complaints and 
issues giving rise to them can be valuable in gauging conflict 
in the Federal workplace; however, EEO does not collect or 
report relevant data in a way that would help answer 
fundamental questions about the number of complaints and the 
prevalence of bases and issues in the universal complaints.
    In addition, some data collected and reported by EEO have 
lacked the necessary reliability, because agencies did not 
report their data consistently, completely, or accurately, and 
because EEO did not have procedures to ensure that the data was 
    Consequently, the data did not provide a sound basis for 
decisionmakers, program managers, and EEO to understand the 
nature and extent of workplace conflict, to develop strategies 
to deal with conflict, and to measure the results of these 
interventions. The EEO basically agreed with these findings.
    The problem came when we said, ``Well, how can we correct 
them?'' They were saying, ``Well, it is going to take some 
time. The reports won't come in until 2001. Then we wouldn't 
have any information until about 2002.'' I said, ``Well, when 
can we get a body of reliable data,'' and they were not able to 
answer that question.
    I was very concerned, as you might imagine. I contacted the 
President. I said, ``We need an inter-agency task force to deal 
with all these discrimination issues, but, in particular, the 
issue of data collection, which is just not acceptable.'' A 
task force is, in fact, working on this, focusing, among other 
things, on data collection.
    One of the things we said was that, at a minimum, we should 
develop requirements to ensure that all agencies have the 
ability to transmit their data electronically in a format that 
would facilitate accurate and comprehensive analysis.
    We also said that we ought to put this issue on a fast 
track. It shouldn't take a year to develop data collection 
techniques and then another 2 years to collect the data and 
then a third year to analyze it.
    I think EEO is sincere in attempting to address this 
concern, but I think there needs to be a real fire under their 
efforts. I think the administration, as well, has acknowledged 
the problem and wants to do the right thing, and I think the 
task force will be productive.
    I would ask you, Mr. Chairman, in terms of the committee, 
to continue aggressive oversight of this issue. You clearly 
understand the problem we have in effective data collection. I 
think with aggressive committee oversight, we can resolve this 
issue, put it on a fast track, and begin to understand the 
problem, because once we understand the problem I think we can 
resolve some of these complaints.
    Thank you. I apologize for going longer.
    [The prepared statement of Hon. Albert R. Wynn follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.003
    [GRAPHIC] [TIFF OMITTED] T8877.004
    [GRAPHIC] [TIFF OMITTED] T8877.005
    [GRAPHIC] [TIFF OMITTED] T8877.006
    Mr. Scarborough. That is fine, Congressman. I thank you. I 
certainly appreciate your comments, and I want you to know 
there will be aggressive oversight here and we are going to do 
whatever we can to make sure it happens.
    Let me ask you just one or two very brief questions. I know 
we have a vote soon.
    I wanted to start out by asking you about trends. You have 
said, obviously, since the early 1990's complaints have 
skyrocketed. You came here in 1993. Complaints are up since 
    What have you noticed in the past few years, just in your 
office, from all the--are the complaints on the rise over the 
last 2 or 3 years?
    Mr. Wynn. I think they are on the rise. I think part of 
that is because we have been giving this issue more attention 
and more people in agencies are hearing about it.
    The other thing that I have said is I don't want to be a 
complaint-handling office.
    Mr. Scarborough. Right.
    Mr. Wynn. That is what EEO is for. But if you have 15 or 16 
people who are citing a problem--and most recently we had a 
problem in IRS where a group of people--what I am saying, 
bottom line, Mr. Chairman, is groups of people are coming in 
and saying, ``In our agency we have this problem.'' And it is 
very serious.
    Mr. Scarborough. Yes.
    Mr. Wynn. A lot of it has to do with promotional 
opportunities, people saying that minorities are being 
channeled into dead-end jobs, non-minorities are being 
channeled into tracks where they can gain experience and skills 
so they will be ready for the next promotion.
    Mr. Scarborough. OK. Let me ask you, I have talked briefly 
about alternative dispute resolution. What is your read on 
that? Is that one way to alleviate the backlog of cases?
    Mr. Wynn. I think that clearly is part of the equation. 
There are some complaints that are amenable to alternative 
dispute resolution, and we have to include that in our 
processing, so I am very pleased that we are looking at that. 
Some complaints aren't valid and some complaints can be 
addressed in kind of a short form fashion. So I think 
alternative dispute resolution provides a great opportunity.
    But the problem that I have been focusing on is, where you 
can't deal with it in a relatively amicable fashion because you 
have a climate or you have a few perpetrators within, say, mid-
management, who are causing this problem, how can we get at 
that? And so if we can find out that there are a lot of 
complaints dealing with harassment or a lot of complaints 
dealing with the denial of promotions, it enables policymakers 
to kind of focus in and say, ``Wait a minute. Why are we 
getting a disproportionate number of complaints about 
promotional denials from these three managers within our entire 
system?'' Because it kind of casts a black eye on an entire 
agency when, in point of fact, it may be a few people 
committing the same kinds of discriminatory acts. That is why 
the data collection is important.
    But, clearly, Mr. Chairman, you are on the right track with 
alternative dispute resolution.
    Mr. Scarborough. Let me go ahead and turn it over to you, 
Congressman Cummings.
    Mr. Cummings. I only have two questions.
    The end result that we are trying to get to is trying to 
reduce discrimination--eliminate it, really, but, I mean, for 
all practicality, reduce it. I was just wondering, you said 
that you had met with a number of agencies. Have you found 
that, in meeting with these agencies, that they were open to 
change? In other words, I take it that the thing that got you 
to the agency was that you had a number of complaints, but once 
you got there I was just wondering, have you seen any kind of 
action on the part of any of the agencies that you could at 
least hold up and say, ``Look, we saw some problems here, and 
we see changes taking place.''
    Mr. Wynn. That is a very good question, Mr. Cummings. It is 
a mixed bag. I think there are some people who are trying, but 
the first response is generally, ``Well, let me tell you about 
all the seminars we have had and let me tell you about all the 
workshops we have had and let me tell you about John Doe, who 
is our sole senior executive person.'' So there is a certain 
resistance to acknowledging the problem. It is like alcoholism 
or other kinds of problems. You first have to acknowledge the 
existence of the problem.
    But there have been agencies that have indicated a 
willingness to work. The Secretary of the Department of 
Agriculture, where there are major problems, has been very 
positively saying, ``Look, I want to do something.''
    Oftentimes it is not the Cabinet-level person, the 
Secretary; it is way down in mid-management that the Cabinet 
Secretary doesn't even see where you have a problem.
    It is difficult because some of the mid-management 
supervisors are not willing to acknowledge a problem.
    Mr. Cummings. I know that you believe in the theory of what 
do you have when the dust settles, and, so that we are singing 
from the same hymn book and page, when you talk about 
aggressive oversight, what do you mean? I want to make sure we 
are saying the same things.
    Mr. Wynn. Again, a very good question. I would like to see 
this committee bring in Cabinet Secretaries and Under-
Secretaries, and, after having looked at the good EEO data, 
say, ``Look, there appears to be a problem here. Your 
inventories are substantial, and the nature of the complaints 
tend to be consistently about a lack of promotions or 
consistently tend to be about a hostile work environment. Now, 
what are you doing about it, Mr. Secretary or Mr. Under-
Secretary, given this data?
    So I think that is why the data aspect is so important, 
because, armed with the data, the committee and others can 
begin to hold Cabinet Secretaries and Under-Secretaries and 
agency heads accountable.
    Mr. Scarborough. Thank you.
    Ms. Norton.
    Ms. Norton. No questions, please.
    Mr. Scarborough. Thank you.
    I want to thank you, Mr. Wynn.
    You said something really briefly that I think we ought to 
talk about, as we try to figure out a way to fix this system.
    You talked about e-mails and the Internet and everything 
else. It seems to me, at the beginning of the 21st century, we 
ought to be able to figure out a way that EEOC can--that these 
complaints can be put instantaneously, maybe not all the 
details, not all the information, but at least basics on hat 
complaints are filed, in what departments. Is it race 
discrimination? Is it sex discrimination? To me, that doesn't 
seem so radical. I think that would be a good first start. At 
least we in Congress could at least tell what trends are 
occurring in what agencies.
    With that, I thank you for your testimony. We are going to 
have to adjourn briefly for a vote, but we will be back in 
about 15 minutes.
    Mr. Wynn. Thank you, Mr. Chairman and members of the 
    Mr. Scarborough. Thank you.
    Mr. Scarborough. Calling the meeting back to order, I would 
like to start out by asking unanimous consent that Congressman 
Joe McDade be allowed to sit up here on the dais. He has a 
party interested in this matter who will actually be on the 
third panel.
    But I wanted to open this portion up by recognizing the 
Congresswoman from the District of Columbia for any opening 
statement she may have.
    Ms. Norton. Thank you very much, Mr. Chairman.
    I would like to thank Chairman Scarborough for noting this 
hearing and for the time and energy he has put into it, and 
also the ranking member for his unfailing interest in this 
    I have an unfailing and longstanding interest. When I first 
came to Chair the Equal Employment Opportunity Commission under 
President Carter, I found a backlog in the private sector 
complaints of 2 years. It had paralyzed the agency.
    We reduced that backlog and got to the point where we could 
process cases within 3 months. We did it through the 
intelligent use, essentially, of alternative dispute 
resolution. Our focus was on looking for those cases which 
needed extended treatment, especially litigation, and 
recognizing that the average case filed in any large complaint 
system is not of that variety.
    We pioneered the use of alternative dispute resolution. We 
called it ``rapid charge processing.'' And it had an 
extraordinary effect, both on the remedy rate and on the 
reduction of time--a system which keeps people locked into it--
and the chairman has said 3 years here. I take it these are 
Government-sector complaints. This is a system that does not 
provide relief. You cannot provide relief by taking everybody 
through every step of the process. You have got to find a way 
to help people who can get all the relief they can deserve 
    In our system of law, the way to do that is to have more 
than one track. There ought to be a track for very complicated 
cases--and there remain such cases in the courts and at the 
EEOC. But I have to tell you the average case that comes before 
the EEOC is not a very complicated case.
    I fear that there has been backtracking here, just as there 
was in the 1980's, after we set off a system that used 
alternative dispute resolution, did not depend upon the 
complexities of a ponderous system, there was huge backtracking 
in the 1980's that took every case through the system.
    EEOC more recently has begun to use alternative dispute 
resolution, but I fear that, with the new system of greater 
involvement of EEOC administrative judges, which I applaud, 
that the whole notion of how to treat some complaints so that 
they are appropriately treated for more rapid resolution has 
been lost in the process.
    I will be very interested to hear whether or not the EEOC 
has learned to sort out cases so that cases can be treated 
appropriately according to their complexity and, therefore, so 
that the agency can, in fact, face the backlog and get rid of 
    I thank you very much, Mr. Chairman.
    Mr. Scarborough. And I thank you, and I agree with you 100 
percent that we do have what you called a ``ponderous system.'' 
As proof, we were going to actually blow up the administrative 
process for EEOC. Unfortunately, every time we tried to blow 
this up, our computers crashed. So we are going to try again. 
We may go to Kinko's on 7th Street, and perhaps those computers 
will be able to handle it a little bit better than our own. But 
it is an absolute mess and, in fact, a ponderous system.
    Let us go ahead and call up our second panel right now, if 
they could come up and have a seat.
    The witnesses on our second panel are going to be Mr. 
Michael Brostek and Mr. Carlton M. Hadden.
    Mr. Brostek is the Associate Director of the Federal 
Management and Work Force Issues in the General Government 
Division of the General Accounting Office, and Mr. Hadden is 
the Acting Director of the Office of Federal Operations at the 
U.S. Equal Employment Opportunity Commission.
    I thank both of you gentlemen for coming, and I would ask, 
if you could, please stand and give an oath.
    [Witnesses sworn.]
    Mr. Scarborough. Mr. Hadden.


    Mr. Hadden. Thank you, Mr. Chairman.
    I ask that my statement be entered into the record.
    Mr. Scarborough. Without objection, so ordered.
    Mr. Hadden. And I would like to just take the time that I 
have to kind of summarize some of the concerns, I think, which 
have been addressed, and address some of the steps that we have 
begun at EEOC.
    The Commission's mission is the eradication of 
discrimination. The process that we are talking about is a 
shared process with Federal agencies. The Commission has 
oversight responsibility of this process. We have 
administrative judges in the field, we have appellate attorneys 
at EEOC.
    With the arrival of Chairwoman Castro in 1998, we 
accelerated the process that had begun with Chairman Gilbert 
Casellas to make the Federal sector reforms. I don't think you 
will find much argument from the Commission in recognition that 
this is a process that certainly needs to be improved.
    The regulatory reforms which took effect this past fall 
certainly are a key to making that change. One of the 
regulatory reforms that we are most interested in is ADR. ADR 
is now required. All agencies must make that available as part 
of their processes.
    We also believe that another key advantage of these 
regulations is the manner in which complaints are now 
processed. They can no longer be fragmented complaints. They 
have to be a unified claim which we look at.
    In overall approach, this process is what we call the 
``comprehensive strategic approach to enforcement'' at the 
Commission, which simply means using all the tools that we have 
at our arsenal, not just relying on the administrative judges 
or the appeals attorneys, but looking at certainly ADR, looking 
at oversight of Federal agencies, how they are managing their 
EEO complaint process. What are the issues relating to glass 
ceiling issues?
    That whole approach will hopefully get us to a much better 
place. The NPR--we have an inter-agency task force that 
Congressman Wynn alluded to in his prior testimony. We are very 
excited about that. We believe that will be absolutely key.
    This is the first time that we have all parties and players 
at the table engaging in a dialog. This is a very complicated 
process, and we believe that this task force holds great 
promise for ultimately delivering reform to the EEO complaint 
process for Federal agencies.
    In regard to the data, you know, what we did with the data, 
we had begun a process of correcting some of the mistakes. I am 
pleased to tell you that we expedited publication of the 1998 
report. I am very hopeful that we will have the 1999 report in 
short order. The reason, in large part, that you don't have it 
now is we want to make sure that it is accurate data.
    We know, preliminarily, that 21,847 people filed complaints 
in fiscal year 1999, and those 21,847 people filed 25,177 
complaints. That is excluding the Department of the Treasury, 
which could not give us a number on the number of individuals 
filing EEO complaints.
    Preliminary data on 1999 shows us that the time it takes to 
process complaints continues to rise. We are very interested in 
using technology. We certainly want to increase our use of 
technology. We have a lot of the guidance that we give agencies 
and our stakeholders now on the website. Certainly, we would 
like to look at expanding our use of that. A lot of that is 
often resource driven and, to that extent, we do the best we 
can with the resources we have, but we think technology is 
certainly a viable way to increase our effectiveness.
    One innovation that we think will help, in terms of helping 
agencies understand how this process works, is what we call 
``computer-based training.'' We are developing a CD which we 
will distribute to all of our stakeholders--agencies, in 
particular--explaining this new EEO process. That, I think, 
will help the agencies understand how to move EEO complaints.
    We have done, in terms of the approach, the comprehensive 
approach, we have expanded the outreach. We have had town hall 
meetings, in partnership with NPR. We had a town hall meeting 
March 22nd in St. Louis. We are having one April 5th in Los 
Angeles, and having one here in Washington April 25th.
    This expanded dialog and communication with our 
stakeholders we believe is certainly a key to figuring a good 
solution to this process. As I said before, the Commission is 
responsible for eradicating discrimination. This is a shared 
process with Federal agencies.
    The Commission's authority, in regard to the Federal 
agencies, is more limited on the Federal than on the private 
    I will keep my comments brief. Thank you.
    Mr. Scarborough. Thank you. We appreciate your testimony. I 
am sure you will have a chance to expand in the question 
    [The prepared statement of Mr. Hadden follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.007
    [GRAPHIC] [TIFF OMITTED] T8877.008
    [GRAPHIC] [TIFF OMITTED] T8877.009
    [GRAPHIC] [TIFF OMITTED] T8877.010
    [GRAPHIC] [TIFF OMITTED] T8877.011
    [GRAPHIC] [TIFF OMITTED] T8877.012
    [GRAPHIC] [TIFF OMITTED] T8877.013
    [GRAPHIC] [TIFF OMITTED] T8877.014
    [GRAPHIC] [TIFF OMITTED] T8877.015
    [GRAPHIC] [TIFF OMITTED] T8877.016
    [GRAPHIC] [TIFF OMITTED] T8877.017
    [GRAPHIC] [TIFF OMITTED] T8877.018
    [GRAPHIC] [TIFF OMITTED] T8877.019
    [GRAPHIC] [TIFF OMITTED] T8877.020
    Mr. Scarborough. Mr. Brostek.
    Mr. Brostek. Mr. Chairman and members of the subcommittee, 
I am pleased to have this opportunity to discuss the Equal 
Employment Opportunity complaint process for Federal employees 
and the Equal Employment Opportunity Commission's role in 
protecting Federal workers from unlawful employment 
    I will summarize my testimony and ask that the full 
testimony be inserted in the record.
    Mr. Scarborough. Without objection.
    Mr. Brostek. In recent years, the complaint process and 
EEOC's role in eliminating discrimination in the workplace have 
been targets of criticism because of the rising number of 
complaints, growing backlogs of unresolved cases, and the 
increasing amount of time that it has been taking to bring 
cases to a close.
    Discrimination complaints and the workplace conflicts that 
underlie them not only disrupt the lives of the employees 
involved, but also can undermine the efficient and effective 
delivery of services to the public.
    The EEO complaint process depends on actions taken by both 
the employing agencies and EEOC. In accordance with regulations 
and policies promulgated by EEOC, agencies receive complaints, 
investigate them, and make decisions on their merits.
    EEOC conducts hearings on complaints and adjudicates 
appeals. Processing hearings and appeals, although fundamental 
to EEOC's mission, is only part of that mission, which also 
includes eradicating discrimination in the workplace.
    With these thoughts in mind, I would like to make three 
brief points.
    First, the number of discrimination companies by Federal 
employees grew during the 1990's, overwhelming the ability of 
agencies and EEOC to process cases in a timely manner. My full 
testimony identifies those caseload trends in more detail.
    Second, we found that the kinds of data that EEOC collected 
did not provide answers to such basic questions as the number 
of employees filing complaints, the kind of discrimination they 
were alleging, and the specific conditions or events that 
caused them to file those complaints in the first place. We 
also found reliability problems with the data that the agencies 
were providing to EEOC and that were then reported to the 
    Third, although EEOC has focused considerably on the 
processing of complaints, the second half of their mission--
going out and investigating the causes of those complaints--
has, in the past, perhaps received a little less attention, and 
we are encouraged to see that there is more attention going in 
that direction.
    That is a segue to the second portion of my statement. 
There is encouraging news today. Actions have been taken or are 
in development, as Mr. Hadden has mentioned, that address each 
of these three issues. I will briefly summarize some of those 
    The regulations that EEOC implemented last November, are 
one of the principal initiatives to try to deal with the rising 
case load. Several provisions in the regulations are intended 
to reduce the number of complaints, including provisions 
allowing agencies and EEOC to dismiss spin-off complaints, 
eliminate fragmentation of complaints, and encourage the 
consolidation of complaints by the same individual.
    In addition, the regulations require agencies to make 
alternative dispute resolution available during the informal 
and formal stages of processing a complaint. This requirement 
may pay large dividends in caseload reduction.
    For instance, Postal Service complaints going to EEOC have 
declined significantly and Postal officials attribute that 
reduction to their increasing use of ADR.
    EEOC data problems are also beginning to be addressed. As 
we just heard, EEOC is now trying to actually get an 
unduplicated count of the number of complainants that have 
filed, and EEOC is working with the agencies on improving the 
reliability of the data and with the NPR task force on thinking 
through what are the best kinds of data to collect and to 
analyze in order to understand the problems that we face.
    Finally, EEOC has announced various other initiatives that 
may lead to reductions in the case loads. For instance, EEOC 
plans to look at their hearings and appeals and extract lessons 
learned from those processes and use those lessons learned to 
help provide guidance and assistance to agencies and to target 
onsite visits to agencies.
    In addition, the inter-agency task force that I mentioned 
has focused on examining dispute resolution strategies and best 
practices, with the hope of creating a model EEO climate and a 
model EEO complaint system.
    In conclusion, the history of rising complaints, increases 
in case backlogs, and the substantial increases in the time 
taken to resolve EEO complaints has been unfair to employees 
whose lives have been disrupted and have distracted attention 
from carrying out the missions of agencies.
    Having studied these issues for some time, we are 
encouraged that attention is now being paid to looking at the 
quality and validity of the information available. We are also 
encouraged about the various initiatives to improve the 
processing of EEO cases and on identifying the root causes of 
the conflicts that get surfaced in the EEO complaint system.
    Nevertheless, most of these initiatives are in their 
formative stages; therefore, we believe that sustained 
attention to these issues by EEOC and the Executive agencies is 
a necessity. This hearing and similar expressions of 
congressional interest can help ensure that adequate follow-
through occurs to make sure that these initiatives are 
successfully implemented.
    That concludes my statement. I would be happy to answer 
    [The prepared statement of Mr. Brostek follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.021
    [GRAPHIC] [TIFF OMITTED] T8877.022
    [GRAPHIC] [TIFF OMITTED] T8877.023
    [GRAPHIC] [TIFF OMITTED] T8877.024
    [GRAPHIC] [TIFF OMITTED] T8877.025
    [GRAPHIC] [TIFF OMITTED] T8877.026
    [GRAPHIC] [TIFF OMITTED] T8877.027
    [GRAPHIC] [TIFF OMITTED] T8877.028
    [GRAPHIC] [TIFF OMITTED] T8877.029
    [GRAPHIC] [TIFF OMITTED] T8877.030
    [GRAPHIC] [TIFF OMITTED] T8877.031
    [GRAPHIC] [TIFF OMITTED] T8877.032
    [GRAPHIC] [TIFF OMITTED] T8877.033
    [GRAPHIC] [TIFF OMITTED] T8877.034
    [GRAPHIC] [TIFF OMITTED] T8877.035
    Mr. Scarborough. I want to echo what you just said. You are 
correct. You have been studying this for some time. In fact, in 
1995 you testified that to EEO process was ``inefficient, 
expensive, and time-consuming.'' I want to ask both of you 
gentlemen the following questions:
    Do you all agree with us that that is still an accurate 
description of the EEO complaint process 4 years later? Mr. 
Hadden, would you still term the process, what Mr. Brostek said 
in 1995--inefficient, expensive, and time-consuming?
    Mr. Hadden. I think the regulations which took effect in 
November are going to be very important. To say that, it is 
still the state of affairs. The regulations took effect in 
November 1999, and I think we are on the road to changing that 
reality and making the process much more efficient and 
    Mr. Scarborough. Mr. Brostek, how do you compare what you 
see today in 2000 to what you saw in 1995?
    Mr. Brostek. Well, certainly, in some regards the situation 
is materially worse. It is taking considerably longer to work 
cases through the entire system, and that is because the number 
of cases that have been generated have been in excess of those 
that the agencies or EEOC have been able to process each year. 
So we have a much larger inventory of cases in place, and the 
average amount of time to deal with those cases has been 
expanding fairly dramatically, even since 1995.
    So I think that the conclusion that we reached in 1995 is 
still a valid conclusion.
    Mr. Scarborough. In fact, you said it takes longer and 
there is a larger backlog. Let me ask you, do you agree with 
Mr. Hadden that the regulations that were implemented in 
November may be helpful?
    Mr. Brostek. I think they are a step in the right 
direction. I think they have attempted to address a number of 
the issues that have arisen about the efficiency of the 
processing of cases.
    I also believe that the ADR requirement, as I mentioned in 
the statement, has a lot of potential to help us out here.
    If other agencies are as successful as the Postal Service 
appears to have been in the past year or two in reducing the 
number of complaints that get into the formal system due to 
ADR, we won't have that rising case trend that we have had in 
the past, and that should enable agencies and EEOC to begin 
working down those inventories of backlogged cases.
    Mr. Scarborough. Do both of you agree that ADR is probably 
the single best chance right now to make this process a bit 
more streamlined?
    Mr. Hadden. I think ADR is an important component; however, 
I think that--it is not just ADR, but it is in the context of 
what we are doing at the Commission in terms of taking a very 
broad, comprehensive approach to our mission to eradicate 
    But, to answer the question and be responsive, I think ADR 
is a very important tool which, used appropriately, can help us 
identify the cases which are most suited for an alternate 
process and let us use our resources to eradicate 
discrimination. But I think ADR is an important tool, but in 
the context of a broad-based, comprehensive approach in 
partnership with Federal agencies and our stakeholders.
    Mr. Scarborough. Mr. Brostek, what do you think? Have you 
seen great advances in using ADR?
    Mr. Brostek. Well, I don't know that we have seen great 
advances yet. We have a couple witnesses who will be on later 
who have successful programs or appear to have successful 
programs. I am not sure that that is true across the board yet. 
We are starting to make progress. These requirements that are 
in the regulations should help out.
    I believe that ADR will, as Mr. Hadden said, be a very 
important component in improving this situation, but I think 
another important component is using the data, as has been 
suggested by Mr. Wynn, and I think by yourself, Mr. 
Scarborough, to help identify where the sources of the problems 
we are facing are. Who is doing the complaining? Why are they 
    Once we can analyze the situation, we can take corrective 
measures to head off complaints in the future. We might find 
that what we need is an educational program of some kind, and 
we can target that to the agencies who are having the biggest 
problems with promotion processes or unfair assignments of 
    The analysis of that data and follow-through I think is as 
important as the ADR process.
    Mr. Scarborough. Now, speaking of who is filing complaints, 
oftentimes you hear the argument that, well complaints may be 
up, but it is just a small number of people that are filing 
these complaints, it is based on personality conflicts and not 
really discrimination.
    Do you all have any evidence and do the numbers bear that 
out, that a small percentage of people file a 
disproportionately large number of complaints, or is that 
really a red herring?
    Either one of you want to answer this question?
    Mr. Hadden. We are pointing at each other.
    Mr. Scarborough. Yes, you are you are pointing at each 
other. You all can't see it out there. What does that mean?
    Mr. Hadden. I think that clearly the point is that we do 
need to have better data to answer those precise questions 
which are legitimate questions, and I believe those are, in 
fact, some of the questions that Congressmen Cummings and Wynn 
asked the General Accounting Office to address.
    I would be uncomfortable saying with any certainty, to you, 
what the answer to that is other than we are moving in the 
right direction and getting the data to address that.
    Mr. Scarborough. Mr. Brostek, were you able to find any 
evidence through your studies that a small number of people 
file a large number of complaints?
    Mr. Brostek. Nothing that we could really quantify.
    Mr. Scarborough. OK.
    Mr. Brostek. There are certainly plenty of allegations that 
that is the situation. I think that the information that is now 
beginning to be collected on the number of individual 
complaints filed each year will help us out to try to track 
    Mr. Scarborough. I am about 45 seconds over, but I want to 
ask one final question very quickly.
    You talked about the use of technology, that you thought 
technology could be used. Does it not seem possible to both of 
you that there is some way that we ought to be able to give 
EEOC the resources where they can almost put instantaneously up 
on the Internet who is filing the complaints, what is the basis 
of the complaints, what are the numbers, the macro, what are 
the numbers of the agencies having complaints filed, and what 
are the bases? Is it race discrimination, sex discrimination, 
age discrimination? I mean, that shouldn't be so difficult, 
should it?
    Mr. Hadden. It should not be difficult, and I would say 
that the NPR/EEOC task force, the data team, in fact, I think, 
has had some very good discussions about what options are 
available to the Federal Government. That is one reason why the 
task force is such a great tool, because we have all the 
agencies at the table.
    But, to answer your question very succinctly, technology is 
there. I think that certainly it is something we could look at. 
I mean, we have learned at EEOC, although we are coming late, 
because, you know, of the resource issue, but we are improving 
our technological extent and reach, and that is something. We 
would like to continue that dialog with our stakeholders of how 
we can do that.
    Mr. Scarborough. Great.
    Mr. Brostek. We certainly haven't analyzed that issue. It 
would seem to me that it would be feasible to do that. The 
important thing, I would think, is, once we are able to, that 
we also have the analytic capacity to analyze it and determine 
what it is telling us so that we can use it and take corrective 
    Mr. Scarborough. Thanks.
    Mr. Cummings.
    Mr. Cummings. Thank you.
    I tell you, this whole discussion has just been 
fascinating, this back and forth here.
    Let me start with the last question that Mr. Scarborough 
    Mr. Hadden, are you saying that the capability is there to 
do what he just said?
    Mr. Hadden. Technology, absolutely. Sure it is there. The 
question--it is there.
    Mr. Cummings. So if the Congress mandated it, it could be 
    Mr. Hadden. Absolutely.
    Mr. Cummings. OK. Because that is what we may have to do. 
See, maybe I am missing something, but, I mean, I have seen 
some of these forms, and I thought the forms--now help me, but 
I thought the forms--you have got to tell what your basis is, 
    Mr. Hadden. Right.
    Mr. Cummings. And then basically the form is supposed to 
tell what the issue is; is that right? Is that right?
    Mr. Hadden. That is correct.
    Mr. Cummings. And so it is a matter of gathering this 
information from some forms. I know I am missing something, so 
tell me what I am missing.
    Mr. Hadden. Well, the forms are gathered and collected by 
the Federal agencies.
    Mr. Cummings. Right.
    Mr. Hadden. And the EEOC in the past would ask for those 
for the data to be combined, compiled, and given to us at the 
end of the fiscal year.
    The problem comes that the data which agencies are giving 
us we find is not always the correct data, is not reliable 
data, so that is partly where the problem comes in.
    One option that we certainly had considered or have thought 
about that the chairwoman had alluded to is what we call a 
``universal docketing number,'' which could allow the EEOC and 
all the agencies to track a complaint as it goes through the 
system. We think that would help us. The question is whether we 
want a live data system or a static data system.
    Mr. Cummings. So you have the capability of doing that 
right now, what you just said, that universal number?
    Mr. Hadden. The Commission does not have the capability. We 
have to engage in a--our data system does not currently allow 
us to do that.
    Mr. Cummings. But you were about to say you have to engage 
in a----
    Mr. Hadden. Discussion or dialog with agencies about----
    Mr. Cummings. That is what I thought you said.
    Mr. Hadden [continuing]. That whole issue. We have done 
that with the task force. I mean, technology will let us do 
pretty much what we want to do.
    The question is, as I indicated in the beginning of my 
testimony, this is a shared process.
    Mr. Cummings. Right.
    Mr. Hadden. The Commission, its relationship with our 
agency stakeholders is one in which, you know, we have to 
engage in dialog and the certification and reliability of data 
is, in large part, in their hands.
    As you know, the question is how much attention does the 
head of the agency give it. That will help and hopefully 
determine the accuracy of the data that we get from the 
    Mr. Cummings. What can we do to help you help us? In other 
words, is there anything that we can do? I tell you, sometimes 
when I--after I got elected, sometimes I wonder about the power 
that we do have. I hate to say that, as a Congressman, but I am 
just wondering, is there anything that we can do to help you? 
Is there something that we could pass or something that we 
could demand? I mean----
    Mr. Hadden. Well, I am trying to avoid the natural instinct 
to say resources is clearly an issue for us, but, in all 
seriousness, it is an issue for the Commission in terms of what 
the Congress can do.
    I know that, in the past, the Commission has been the 
beneficiary of an increase, but that is certainly one thing.
    I think the other is this kind of dialog and attention to 
the problem, and I think that helps. The task force is also 
    Mr. Brostek. I would like to followup on that. I think we 
are having this hearing today, in part, due to what you and Mr. 
Wynn have done, by asking us to do a series of assignments, to 
analyze the situation, and determine what the facts are for the 
situation. I think is a reasonable expectation for you to also 
have of the agencies and EEOC provide you some fact-based 
analysis of what the problems are, what their work load is, 
what kind of resources they need to deal with that work load.
    I think asking for that kind of information from the 
agencies and EEOC will help you make more-informed decisions 
about what kind of resources ought to be made available.
    Mr. Cummings. Well, Mr. Brostek, I am so glad you said 
that, because I want to pick up where the chairman started.
    He started by asking you all about some things that may 
have been stated back in 1995. Here we are, going on 6 years 
later, and I am just wondering--you know, I think one of the 
things that is so frustrating for us a lot of times is that we 
don't like to think that we are meeting just to be meeting, and 
we like--in order for us to feel that we are making some 
progress, it is nice to have some type of measuring tool to 
figure out did we accomplish something or didn't we or would it 
have been better off for us to be playing golf somewhere 
instead of wasting everybody's time.
    I am very serious about that.
    So the question is: if we come here a year from now, I 
mean, what should we expect to see? And I would like to be able 
to focus--just like the chairman quoted from 1995, I would like 
to have a quote so that whoever is here can sit and say, ``Now, 
back there in March 2000 you said.''
    Now where are we? What can we expect? You have told us 
about the regulations from November in answer to the chairman's 
question. I mean, you did say that the situation was worse than 
a few years ago.
    Mr. Brostek. It certainly is in terms of the number of 
cases and the backlog.
    Mr. Cummings. Right. So now the things that you said are 
worse--Mr. Hadden talked about the optimism coming from the 
regulations in answer to the same question. So now the question 
becomes: what should we reasonably expect within a year from 
now so that we can quote you and say, ``You said we would be 
here. We should be here by now?''
    The reason why I am asking that question is I am not trying 
to mess with you. I guess it is so that we don't keep doing the 
same things over and over again.
    There was a song way back when in my younger days that 
said, ``You have got me going in circles,'' and in some kind of 
way we have got to get off the circle because lives are being 
affected every day.
    So if you could tell us, give us a nice statement so that 
we could have a nice measuring tool, so that, if it is you, or 
whoever is sitting in your position a year from now, we can 
take it--load the statement up on a big screen and say, ``Have 
we accomplished this and where are we? And, if we haven't 
accomplished it, why haven't we?''
    I am listening.
    Mr. Brostek. Well, I don't think it is really the----
    Mr. Cummings. I would like to hear from both of you, by the 
    Mr. Brostek. I don't think it is really the General 
Accounting Office's role to set the goal for the EEOC or the 
agency, but I would certainly think that what you have been 
    Mr. Cummings. What would you hope for? And then I will ask 
my friend, Mr. Hadden, another question.
    Mr. Brostek. I would hope that the beginning decline in the 
number of cases going into the system would continue to be the 
trend--that we wouldn't see it going up any longer; we would 
see the number of new cases going down.
    I don't know what we can expect next year for the EEOC 
caseload, because they still have this huge inventory of cases 
out there they have got to work on, but you certainly would 
want the initial cases coming in to continue going down, and 
you wouldn't want to see too long before the trend in EEOC, 
itself, with the hearings and appeals workload start going 
down. I just don't know whether that is reasonable next year.
    I think you would also reasonably expect that by this time 
next year there would be some clear resolution to the data 
problems and clear identification of the data that EEOC and the 
agencies will track to determine what the causes of the 
conflict are that underlie these complaints.
    Mr. Scarborough. OK.
    Mr. Hadden. I would add I agree with all of that. I think 
that certainly is reasonable. But I think, in a more broad 
brush, what you should see next year is, as a result of the 
partnerships that we have with the stakeholders, identification 
of some of the best practices of Federal agencies, and also on 
the private side. That is one of the teams that we have on this 
task force.
    I think that will be very helpful to know. What are the 
best practices? What are the prevention strategies which we 
know work? Those are, I think, important measures.
    The numbers certainly, you know, count, but for the 
Commission I go back to its mission of eradication of 
discrimination. And I hope that we will next year this time be 
able to get to the point of using ADR much more efficiently and 
effectively throughout the Federal community so that we can 
focus on those egregious cases which we don't want to see. We 
do want to see the Federal Government truly become a model 
    Mr. Cummings. Last question: would it be helpful for us to 
set some goals so that when you go back to your task force you 
can say, ``Well, this is what the Congress has said they want 
to see within a certain period of time?''
    I mean, I understand that there are pressures coming from 
all around, and that sometimes it is helpful to go back with 
something saying, ``Look, I just left the Congress, and this 
guy, Cummings, was going crazy, and so this is one of the 
things he and the chairman said and Ms. Norton, and they are 
very upset, and so this is what they have asked us to do.'' 
Would that help you?
    Mr. Hadden. I can only tell you that anything helps in 
terms of getting the message out, but I think that we at the 
Commission have been on message in terms of recognizing the 
flaws with this EEO process and have been driven in short order 
to make some changes in dramatic fashion. That certainly would 
help. But I think that, more importantly for us, it is a 
resource question in terms of what we ultimately can deliver 
for the Congress.
    Mr. Cummings. Thank you.
    Mr. Scarborough. Thank you, Mr. Cummings.
    Mrs. Morella.
    Mrs. Morella. Thank you, Mr. Chairman.
    I think this is an important meeting. It is kind of like 
deja vu all over again, because it is not the first hearing 
that we have had on this issue. I think we assumed that we had 
given adequate tools and mechanisms for streamlining the 
process, since we had all heard from constituents about 
backlogs and not feeling that anybody was paying attention.
    I was surprised also to find, up to this point--and I say 
``up to this point'' because I think we are going to look ahead 
at what can be done and should be done, but I am surprised that 
we didn't have an actual analysis and statistical numbering of 
the number of cases, the causes. I know you are starting to do 
that, but I kind of had assumed that this was automatically 
being done.
    All right. In July of last year, my office met with 
Patricia Crawford and Ida Castro to talk about what needed to 
be done, what the problems were facing the EEOC, and it was 
their goal to implement the changes to the problems that I know 
that Congressman Wynn earlier addressed and that you have heard 
here today, too.
    The discussion had to do with agencies will be no longer 
able to rewrite the decisions of the administrative judges. 
They may now only accept or reject; improved FMLA claims--
family and medical leave claims--now they will be approached as 
a whole and the agency may not fragment the claim; EEOC will 
take part in the claim throughout the process, instead of 
coming in at the end, which would minimize the agency's ability 
to delay; and hiring 19 administrative judges and 14 appellate, 
because the President had given more money for that.
    Now, I am wondering, looking at some of those changes, if 
you would--I know I guess they started in November, as you have 
said. How successful do you see these changes as being? And are 
there other remedies? I want to ask you another question after 
that, but are there other remedies that you are addressing? I 
know you talked about the alternative dispute resolution and 
the inter-agency committee.
    Mr. Hadden. Just to clarify, we do have reports to do the 
analysis of, agency-by-agency, the number of complaints filed, 
the number of cases for which discrimination is found, but we 
want to improve the accuracy and reliability of that data, and 
we want to certainly start counting the number of individuals, 
so we have that data available.
    In terms of the success of those things that you have 
mentioned, it is--and I hate to keep saying it. I feel like I 
am dodging the question, but it is March and we began in 
    We are excited and think that they will, in fact--certainly 
the resources which were provided us by the Congress have made 
a tremendous difference in terms of, if not reducing the 
inventory, reducing the time it takes to handle complaints.
    But when you are talking about a reduction of perhaps a 
month in the inventory, it seems somewhat small, and so I don't 
like to talk too much about those, but those resources have 
made a tremendous difference.
    I think a lot of this can hopefully be turned around with 
the dialog with our stakeholders--and our stakeholders include 
Congress--in terms of what is it that your goals are and how is 
it that the Commission can go about doing those.
    Mrs. Morella. Would you like to comment on that, Mr. 
    Mr. Brostek. We really haven't looked at the effect of 
these recent changes.
    Mrs. Morella. So you think it is pretty early. That is what 
you are both sort of saying. We have got the goals, we are 
going to do it. We are going to reduce that time element, too, 
and that backlog. You mentioned you have the resources, so that 
is not a problem. You have the will?
    Mr. Hadden. Right.
    Mrs. Morella. And you think you have the recommendations to 
do that. Did you want to comment?
    Mr. Brostek. If I could, just for a second. It kind of goes 
back to Mr. Cummings' point about what goals should we set. You 
know, there is the Government Performance and Results Act 
    Mrs. Morella. Yes.
    Mr. Brostek [continuing]. That requires agencies, 
themselves, to set goals, and you are intended to be 
consultants with the agencies as those goals are being set, and 
then it is legitimate for you to hold the agencies accountable 
for reaching those goals or explaining why they haven't done 
    I would suggest that looking at the strategic plan and the 
annual performance plan of EEOC, as well as the agencies, to 
see whether they set those goals and you are satisfied with 
them would be a good technique.
    Mrs. Morella. That is an excellent point, because it is a 
very important law that we have and we need to do the oversight 
on it.
    A final point. I know that mentioned in the testimony--I 
think it was probably yours, Mr. Brostek--was the fact that 
EEOC also has a responsibility to try to eliminate 
discrimination in the workplace, and I guess, from what I 
understand, not that much has been done in that regard, maybe 
because of the backlog or bureaucratic difficulties that were 
faced. But I am wondering about whether you have some programs 
in mind, what you are doing in terms of a program to eliminate 
this discrimination, certainly reduce it significantly.
    Mr. Hadden. Our comprehensive approach, in terms of using 
all the tools, we have a complaint investigation which agencies 
use, and also the hearings and appeals, but what we are hoping 
will happen is, through onsites of Federal agencies, where we 
go out and actually visit with the agencies and employees, will 
lead us and put us in the posture of preventing complaints from 
arising in the first place.
    I think we have had some very good successes, in terms of 
the mission, itself, the appeals staff who write the cases and 
actually have to make judgments, as well as our administrative 
judges, in terms of eradicating the discrimination. I mean, 
that is kind of a reactive posture.
    What we want to do is use everything--use our outreach, use 
our technical assistance for all of our stakeholders to talk 
about these very issues.
    I think, by having a dialog with all of the parties, 
including the administration and the agencies, we will make 
some dramatic implementations.
    Mrs. Morella. Do you find that there is a preponderance of 
cases from some agencies more than others? Do you have a record 
of that?
    Mr. Hadden. Well, we know that the Postal Service is one of 
our biggest stakeholders. And, generally, if you start looking 
at the Defense agencies, it pretty much follows where the large 
number of Federal employees are.
    Mrs. Morella. So you give the greatest interest and concern 
and remediation to those agencies, I would assume?
    Mr. Hadden. We try to take an approach of not just looking 
where the numbers are, but where the problems are, and what we 
hear from our constituents and from our stakeholders. It may 
be, in fact, a much smaller agency that may, in fact, deserve 
our attention.
    Again, to use the question of where do we target our 
resources, we have a lot of requests to come and visit an 
agency and do an onsite review. We don't have the staff, so we 
have to choose, and we choose based upon an assessment of the 
information that we have, looking at the reports we have gotten 
in the past in terms of complaints and other information that 
we may have received. So it is not necessarily the number of 
employees that dictates where we go.
    Mrs. Morella. A subsequent meeting of this subcommittee 
will be great when we analyze what has happened since this 
meeting. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Scarborough. I thank you, Mrs. Morella.
    You know, hearing Mrs. Morella ask the questions, I started 
thinking about the people that are up in the Civil Service 
panel, and I believe all of us that are here today are probably 
within the top five of Members with Federal employees in their 
District. I know I come in at a strong three or four, and I 
know Mrs. Morella is at the top. Ms. Norton, you probably 
represent one or two, yourself, don't you, in D.C.
    I would like to open it up for any questions you may have 
for our panel.
    Ms. Norton. Thank you, Mr. Chairman.
    First, let me say, Mr. Hadden, that I think the agency is 
to be congratulated on the work it has done to improve its 
processes, and particularly to begin to use ADR to look at and 
listen to the complaints about its processes and try to correct 
    I also recognize that there is a fatal flaw in the EEOC 
process, and it is a flaw that comes from the 1960's, and it is 
intolerable this late in the day that complaints of Federal 
employees are processed differently from complaints of private 
sector employees, so that if I happen to work for AT&T or 
McDonald's, I come to the EEOC office and I say, ``Tell me one 
way or the other, has there been discrimination.'' If I work 
for the FCC, or God help me if I work for the Congress of the 
United States, which has even a worse process, and I come and 
say, ``I have to talk to the people who I am accusing,'' that 
is a fatal flaw. It is structural discrimination that is built 
into the process as it affects Federal employees.
    Let me say to you, Mr. Hadden, nobody is going to be able 
to break through that here in the Congress, as we have tried to 
do for years, unless the EEOC can, first of all, show the that 
it can deal with what it has got. Nobody is going to say, ``OK, 
you can now handle all the Federal employees'' unless they can 
see that the agency is, in fact, able to digest what it has.
    I want to look at the ADR process. I agree with the rest of 
the panel that it is key to moving cases in a fair and 
expeditious way.
    I look at page 9 of your testimony, in which the EEOC seems 
to me quite appropriately has used a test process. I am not 
sure why you used the Census as the test process. I think it is 
OK, but it seems to me that it would have been more suitable to 
use a section or department of a Federal agency, since these 
are temporary employees, probably unrepresentative of the 
Federal Government.
    First, let me ask you, except for the fact that they were 
going to be here today and gone tomorrow, why did you use 
Census employees instead of employees of some Federal agency or 
a section of some Federal agency?
    Mr. Hadden. We were approached by the Department of 
Commerce/Census to partner with them, and that is principally--
    Ms. Norton. See, that is what I mean. You have got to be 
proactive, it seems to me, if you want to improve your 
processes. They came to you.
    Mr. Hadden. Right.
    Ms. Norton. It seems to me that, in keeping with the 
concerns about data, the first thing to do would have been to 
be as scientific as possible if you are trying to implement a 
new system, and, therefore, to look for some small part of an 
agency that was fairly representative of Federal employees, 
because this is not going to tell me whether this system works, 
because, if anybody is unrepresentative of Federal employees, 
there are people who are, many of them, temporary people, out 
of work. If we try to recruit some today at a job fair at the 
Convention Center, they are fine people, but nobody would claim 
that they represent Federal employees.
    So the first thing I would ask you is to do a real test 
somehow, and you are in the best position to do this, to find 
us a representative group of employees from some agency. It 
doesn't have to be a lot of agencies.
    I applaud your notion of going at this slowly.
    Now, I look at what you say that you did. You looked--you 
know, as a measure of your initial success, you say, of 192 
complaints filed to date, EEOC has identified 45 which were 
suitable for processing. Why is that a measure of success, that 
a quarter of the cases that were filed were deemed suitable for 
process? Whose success does that represent, the success of the 
complainant, success of the agency, success of the agency that 
is alleged being discriminated against? How are we judging 
success here?
    Mr. Hadden. When we described that as a measure of success, 
I think the question is--going back to the point that you may 
have made earlier, Congresswoman, in terms of identifying and 
focusing our resources on those cases for which we think there 
is something there that needs to be focused on. And the 
statement that it is the measure of success is an 
acknowledgement that there are some issues which don't really 
lend themselves to the full investigation.
    For us, the attraction of the Census is that it is a 
neutral party that is doing the assessment early on in the 
    Ms. Norton. Excuse me? Any more neutral than any other 
Federal agency doing initial assessment?
    Mr. Hadden. Well, the question is: if the party in 
interest, which is a Federal agency, is doing the intake of the 
complaint, is neutral, there is a concern that a person may be 
more reluctant to share what they know if they see the agency 
doing the intake of the complaint.
    Ms. Norton. Who is doing the intake? When filing against 
the Census, itself, who is doing the intake?
    Mr. Hadden. I am sorry. The EEOC's Washington field office 
is doing the intake of the complaint.
    Ms. Norton. I see. You are doing the intake?
    Mr. Hadden. Yes, ma'am.
    Ms. Norton. In eliminating three-quarters of the 
complaints, which may be entirely appropriate, what happened to 
the complaints eliminated?
    Mr. Hadden. They have the right to appeal to EEOC.
    Ms. Norton. No, what happened to them? Why were they 
    Mr. Hadden. The reasons may have varied. For example, 
timeliness--they were untimely complaints. They did not state a 
    Ms. Norton. Mr. Hadden, may I ask that you submit to--you 
have a small number of complaints here, 192 complaints. Would 
you submit for the record to this hearing the disposition of 
the three-quarters of the complaints that were deemed not 
suitable for processing?
    We are not going to have any sense of--you know, one 
question we have is, you know, are people being discriminated 
against, why are people filing more complaints. If all you give 
us is some bottom-line figure, which is the number that you 
have processed, you have told us very little.
    Now, I am not suggesting that the three-quarters that were 
eliminated should not have been eliminated, but I am 
suggesting, with only 192 complaints, this committee should 
have been told what was the reason for three-quarters not being 
deemed suitable for processing so we could have some sense of 
how the process, in fact, works, and it would have more 
    Now, I am interested in the administrative judge trying to 
settle the case. You say, through the early neutral evaluation 
process, the administrative judge tries to settle a case. The 
initial success, as shown by this pilot, prompted the 
Department of Commerce to request an extension. How many cases 
were settled?
    Mr. Hadden. We would have to get that information.
    Ms. Norton. Well, my goodness, Mr. Hadden. You say it is 
successful. We don't know whether or not these cases were 
settled. I mean, the whole point here is to try to see if ADR 
works. You come with testimony that tells us it is successful, 
but you don't tell us if even one case was settled. That is 
very important information for the committee to have and for 
the EEOC to have, and I ask that it be submitted to us and I 
ask that you look at the settlement, see what the settlement 
    [Note.--The U.S. Equal Opportunity Commission's Office of 
Federal Operations report entitled, ``Annual Report on the 
Employment of Minorities, Women and People with Disabilities in 
the Federal Government for the Fiscal Year Ending 1998,'' may 
be found in subcommittee files.]
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.036
    [GRAPHIC] [TIFF OMITTED] T8877.037
    [GRAPHIC] [TIFF OMITTED] T8877.038
    [GRAPHIC] [TIFF OMITTED] T8877.039
    [GRAPHIC] [TIFF OMITTED] T8877.040
    [GRAPHIC] [TIFF OMITTED] T8877.041
    [GRAPHIC] [TIFF OMITTED] T8877.042
    [GRAPHIC] [TIFF OMITTED] T8877.043
    [GRAPHIC] [TIFF OMITTED] T8877.044
    [GRAPHIC] [TIFF OMITTED] T8877.045
    [GRAPHIC] [TIFF OMITTED] T8877.046
    [GRAPHIC] [TIFF OMITTED] T8877.047
    [GRAPHIC] [TIFF OMITTED] T8877.048
    [GRAPHIC] [TIFF OMITTED] T8877.049
    [GRAPHIC] [TIFF OMITTED] T8877.050
    [GRAPHIC] [TIFF OMITTED] T8877.051
    [GRAPHIC] [TIFF OMITTED] T8877.052
    [GRAPHIC] [TIFF OMITTED] T8877.053
    [GRAPHIC] [TIFF OMITTED] T8877.054
    [GRAPHIC] [TIFF OMITTED] T8877.055
    [GRAPHIC] [TIFF OMITTED] T8877.056
    [GRAPHIC] [TIFF OMITTED] T8877.057
    [GRAPHIC] [TIFF OMITTED] T8877.058
    [GRAPHIC] [TIFF OMITTED] T8877.059
    [GRAPHIC] [TIFF OMITTED] T8877.060
    [GRAPHIC] [TIFF OMITTED] T8877.061
    [GRAPHIC] [TIFF OMITTED] T8877.062
    [GRAPHIC] [TIFF OMITTED] T8877.063
    [GRAPHIC] [TIFF OMITTED] T8877.064
    [GRAPHIC] [TIFF OMITTED] T8877.065
    [GRAPHIC] [TIFF OMITTED] T8877.066
    Ms. Norton. We ought to know whether the settlement was 
some disposition within the agency, whether the settlement was 
for cash. We ought to compare the kind of settlements you do 
with what kind of settlements are done by the agencies.
    I would have thought that the GAO would want to know the 
same kind of information, and I would ask you that any work you 
look at look more closely at the details of what is reported so 
that we can have some basis to judge whether it is a success.
    The GAO reports on a growing inventory, and it says that it 
is taking--you say it is taking longer to process with a 
growing inventory. You also say there is a sharp increase in 
the average time to process a case. Now, that is counter-
intuitive. That is to say, if there were a growing inventory, 
then you would expect the effect on the agency to reduce the 
time to process a case. Can you explain or can Mr. Hadden 
explain why, with a growing inventory, that hasn't amounted to 
some pressure for greater efficiency or innovations that might 
have tried to keep up with the time to process a case?
    Mr. Brostek. One of the things that we reported in one of 
our earlier reports specifically for EEOC is they have become 
more efficient in the sense that their judges are processing 
more cases per judge per year. The reason why the backlog is 
growing and the inventory and the time is growing is because 
there are more cases coming in that even a more-efficient judge 
can process. There are more sitting on the shelf----
    Ms. Norton. Well, that doesn't have anything to do with 
efficiency. I don't know whether the judges are more efficient 
because they are not taking lunch hours or if they are more 
efficient because processes that increase the efficiency are 
being incorporated. One would involve no more efficiency, 
simply more manpower, and the other would involve greater 
    What I don't understand is what the agency is doing to meet 
the greater inventory.
    Mr. Brostek. Mr. Hadden could address that better than I.
    Mr. Hadden. The question--I want to make sure I understand 
it, Congresswoman--is what is the EEOC doing?
    Ms. Norton. What I am saying, Mr. Hadden, is the pressure 
on you is very great because there are more of these--you can't 
do anything about that. There are more of these complaints 
    The normal reaction of a bureaucracy is the more--this is 
the way the market is supposed to work--the more pressure I 
got, the greater the incentive to incorporate measures that, 
for example, shorten the time to process an appeal.
    GAO reports sharp increase in the time to process appeal, 
even as the number of cases has increased. That is why I say it 
is counter-intuitive. It should be just the opposite--that you 
ought to feel such pressure that you are looking for ways to 
shorten the appeal time, as there is a growing inventory, 
according to the GAO. You would think that, instead of being, 
says the GAO, longer to process a case, that the growing 
inventory would lead to a shorter time to process a case.
    I am looking for some way to explain these counter-
intuitive results.
    Mr. Hadden. I think that addresses--the question of data 
analysis is one of the issues of why we need to do a better job 
at being able to answer those very questions.
    The growing inventory is certainly a problem with agencies, 
as well as the EEOC, in terms of the inventories are growing 
and it takes longer.
    I think what we have to do--and that is why I talked about 
the computer-based training--is help the agencies understand 
how to handle the cases, what is a proper investigation.
    The bulk of the cases, I believe, you recalled was they are 
not that complicated in terms of EEOC has expertise in 
investigation of cases and we should be able to help them move 
those cases faster, as well as the Commission's judges and 
appellate staff. We need to study that.
    Ms. Norton. Yes. And, by the way, I am not suggesting--your 
people are probably trying also to make sure that they do a 
proper job. There were terrible things reported by the EEOC 
during the 1980's that essentially, in order to process cases 
quickly, they were essentially not processing them. That is the 
last thing I am suggesting.
    Mr. Hadden. Right.
    Ms. Norton. But I am suggesting that a greater inventory is 
a wonderful incentive toward greater efficiency.
    Now, the ranking member asked about goals and, you know, 
wouldn't quite specific goals be helpful. You did not mention 
that on page 12 you have goals----
    Mr. Hadden. Right.
    Ms. Norton [continuing]. That I thought were rather modest, 
and I wonder how you reached the goals you have.
    Mr. Hadden. Sure.
    Ms. Norton. You say 5 percent reduction in the number of 
hearings over 6 months, 20 percent total closures in the oldest 
group of appeals. That must mean that it would be from the 
oldest, with 10 percent of appeals resolved within 180 days, 
    How do you set goals, because it gives the appearance of 
just setting the most modest goal you can find in order to make 
sure you can reach it.
    Mr. Hadden. Our goals are set based upon our resources, and 
that is the fiscal year 2000 goals, I believe. We have to set 
goals which we are hoping to achieve, and these goals were set 
based upon what we know has happened and what resources we 
    Ms. Norton. I only have one question beyond this, Mr. 
Chairman, but just let me say something about setting goals 
based on your resources.
    When I came to the EEOC, the backlog was scandalous, and 
the way in which the EEOC handled its backlog was to come back 
to Congress and ask for new resources, and Congress spit in the 
eye of the agency, and that is because nobody--we could never 
give you dollar-for-dollar to match the increase in cases.
    I got a 50 percent increase in resources when I was at the 
EEOC, and I am telling you nobody was handing out free money, 
and the way I did that was to demonstrate that we were going to 
use the process, and we put it in three separate offices, which 
cut the process time dramatically. We said, ``If it takes you 2 
years now--'' this is private sector stuff--``we will get it to 
3 months.'' But we said, ``We can only do that if you give us 
the resources to do it.''
    Congress responded, because it knew it wasn't being asked 
to do the impossible, to match case for dollar. Until you are 
able to convince us that you are not setting such modest goals 
based on resources, nobody is going to be responsive with 
resources. You have got to incorporate within your request for 
resources a showing of efficiencies that cut the need for ever-
increasing resources.
    I think that Congress has been responsive in the past and 
can be responsive in the future, and I cannot, in all 
seriousness, say to Congress that I think that whenever EEOC 
comes in and says it has got more caseload you ought to give 
them more money, because that, in fact, does not reward 
efficiency and it seems to me that if you show efficiency you 
have the credibility to get resources, but not if all you say 
is, ``Hey, we got more cases.''
    I would like you to take that back to the chairman, a very 
good friend who understands, because I have gone to bat for her 
at the Appropriations Subcommittee. I tell you, the 
Appropriations Subcommittee tells me, ``The President asks for 
37 percent resources, you have got it.'' He negotiated it. You 
have got to come in now and do a quid pro quo.
    Finally, let me ask you, the Congress approved an 
extraordinary new provision in title seven in 1978. It gave the 
EEOC jurisdiction to coordinate, and thereby eliminate, overlap 
and inefficiency among all the agencies with job discrimination 
responsibilities. That meant everybody from the EEOC to anybody 
who had something to do with job discrimination.
    At the time I was at the EEOC--talking about Inter-Action 
Agency Task Force--nobody put out a regulation that you didn't 
bring to the table, so that we weren't all having different 
regulations and building inefficiency, because there are a 
number of different agencies.
    You indicate that you have a inter-agency task force here, 
and I applaud that, but I must ask you: has this addition to 
the statue gone moribund, or are you engaged in coordinating 
all the agencies which have job discrimination jurisdiction to 
make them speak as one and to avoid overlap and inefficiency?
    Mr. Hadden. I would have to say I think we certainly need 
to do better, in terms of enforcing that provision of the 
    The inter-agency task force is a wonderful vehicle and 
tool, but, notwithstanding that, the Commission has 
responsibility to coordinate with our Federal agencies.
    We need to do better.
    Ms. Norton. That would include, of course, the agencies 
that, of course, feed into your system.
    Mr. Hadden. Right.
    Ms. Norton. You have the jurisdiction. It was considered 
one of the great new additions to title seven of the 1964 Civil 
Rights Act.
    May I ask that you and the chairman and the Commission 
provide for this committee what you intend to do to fully 
activate the provision added in 1978 that gives you the 
authority to coordinate across the board, including the Federal 
agencies that feed into your system, all agencies having title 
seven or job discrimination jurisdiction?
    Mr. Hadden. OK.
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Scarborough. I thank the gentlelady and certainly 
appreciate her coming to this hearing, being really, obviously, 
an expert from her position as heading this area up back under 
President Carter.
    Again, I appreciate your time.
    Mrs. Morella, do you have any followups?
    Mrs. Morella. Just one on the ADR.
    I note that the Postal Service has been employing it. You 
mentioned they had the greatest number of complaints because 
they have the greatest number of employees. They have been 
employing it, and, according to the testimony, it has made a 
significant difference.
    How do you, in discussion surrounding the concept that we 
are trying to promote ADR in all the agencies--if, in fact, it 
is a matter of one's choice, what are you doing within the 
agencies to get people on track to employ or become part of the 
alternative dispute resolution situation?
    Mr. Hadden. The requirement of ADR is relatively new for 
EEO. We are looking at how each agency--we are giving them a 
lot of flexibility and we will look at what works best. The 
REDRESS program at the Postal Service certainly has been very 
effective. I think there are some broad principles that we 
think work--commitment from the top level of the agency, the 
head of the agency, a fair process. Those are some of the 
hallmarks that we would look for. I think those would encourage 
people to use ADR throughout the process.
    The key is integrity and fairness, I think, in large part.
    Mrs. Morella. Should it be mandated in some way?
    Mr. Hadden. The Commission doesn't require that, for 
example, if an agency chooses to have its managers, as a 
requirement that they go, that is a choice that an agency can 
    We have not given a lot of regulations on the ADR process, 
because we want agencies to have as much flexibility as 
possible in designing their program.
    Mrs. Morella. Yes.
    I think this will probably be coming up in another panel. 
Thank you, Mr. Chairman.
    Mr. Scarborough. Thank you, Mrs. Morella.
    Mr. Cummings.
    Mr. Cummings. Mr. Hadden, in light of the excellent line of 
questioning on the part of Ms. Norton, I hope that you all 
will--I mean, I know you have got your performance goals on 
page 12, and for fiscal year 2000, but I would hope that, when 
you develop them for 2001, you will take into consideration the 
things that Ms. Norton has said. We do see her as a leader in 
this area. She knows her stuff backward and forwards, and when 
she says that the goals are just not up to what they ought to 
be, you can bet your bottom dollar that carries a lot of weight 
with us, and so I would hope that you all would take those 
comments into consideration when you sit down to rate your 
future goals.
    Thank you, Mr. Chairman.
    Mr. Scarborough. Thank you, Mr. Cummings. I want to second 
that. I think we all pay a tremendous amount of deference to 
Ms. Norton's insights on this issue.
    Ms. Norton, any followups?
    Ms. Norton. No, Mr. Chairman.
    Mr. Scarborough. OK. Thank you.
    And I am just going to submit a question. You said that it 
appears that minorities are placed in positions that are dead-
end employment tracks, while others are allowed to be put into 
positions or are more likely to be put in positions that will 
ultimately--management spots in Federal agencies.
    Again, we are going to keep it open. I want you to give us 
any information you may have to substantiate that claim or 
refute it.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.067
    [GRAPHIC] [TIFF OMITTED] T8877.068
    [GRAPHIC] [TIFF OMITTED] T8877.069
    [GRAPHIC] [TIFF OMITTED] T8877.070
    [GRAPHIC] [TIFF OMITTED] T8877.071
    [GRAPHIC] [TIFF OMITTED] T8877.072
    Mr. Scarborough. With that, I thank you for coming. I know, 
obviously, the questions have been difficult, but, Mr. Hadden, 
especially you, we look forward to seeing you again next year, 
when I know we are going to have some very--don't roll your 
eyes--we are really going to have some very positive, very, 
very positive statistic to show that those regulations that 
were just, in all fairness, implemented 6 months ago, combined 
with other alternative dispute resolution process, will bring 
the number of complaints down, and I think, more important, 
that we all get together and work on a bill that will make sure 
that you all have the resources you need to get immediate 
reporting of EEOC complaints on the Internet.
    I thank both of you for coming, and we will go into the 
third panel.
    OK. We are going to take a 5-minute break and be right 
    Mr. Scarborough. We will call the meeting back to order.
    I would like to welcome our third panel here and ask that 
you raise your right hands.
    [Witnesses sworn.]
    Mr. Scarborough. Our third panel consists of Gerald Reed, 
Cynthia Hallberlin, and Roger Blanchard.
    Mr. Reed is president of Blacks in Government; Ms. 
Hallberlin is chief counsel of alternative dispute resolution 
at the U.S. Postal Service, and she is also the national 
program manager for REDRESS, the Postal Service's mediation 
program for resolving EEO complaints. REDRESS is an acronym for 
Resolve Employment Disputes, Reach Equitable Solutions Swiftly. 
Mr. Blanchard is the Assistant Deputy Chief of Staff for 
Personnel at the U.S. Air Force.
    Both Ms. Hallberlin and Mr. Blanchard are accompanied by 
subject matter experts that will join them at the table, and I 
will ask each witness to identify their expert when they 
testify, and we have already sworn them in.
    With that, why don't we start with you, Mr. Blanchard, if 
you could give us your testimony.


    Mr. Blanchard. Mr. Chairman and distinguished members of 
the Civil Service Subcommittee, it is a great honor to be here 
representing the men and women of the U.S. Air Force and to 
report on the subject of alternative dispute resolution.
    We have been successfully using ADR to resolve Equal 
Employment Opportunity complaints for 6 years, and we are 
thankful for the opportunity to be here and discuss it with 
this committee.
    Joining me today is the Air Force's recognized and 
unequivocal expert on ADR, Mr. Joe McDade. Joe works as 
Assistant General Counsel in the Secretary of the Air Force's 
General Counsel Office, and he is responsible for assisting in 
the development of the Air Force-wide ADR policy, plans, and 
programs. He has been affiliated with our ADR program since its 
inception and continues to make it the award-winning program 
that it is.
    We would ask that our written statement be entered into the 
    Mr. Scarborough. Without objection.
    Mr. Blanchard [continuing]. And I will summarize the 
written statement as follows:
    Alternative dispute resolution works for us in the Air 
Force. We have experienced approximately a 70 percent 
resolution rate of cases that come before the alternative 
dispute resolution process. It is not a panacea. It does help 
to promote communications, fosters workplace harmony, and 
empowers employees and managers to keep complaints and 
communication problems to a minimum and keep formal complaints 
out of the EEO process.
    It takes commitment. We have been at it for over 6 years. 
It takes senior leadership commitment, which we have enjoyed 
from the Secretary of the Air Force and the Chief of Staff. 
Over the last period of time, the Secretary of the Air Force 
has issued five statements of support for ADR.
    It takes extensive and continuing training, not only for 
practitioners of alternative dispute resolution, but for 
supervisors and managers, as well. We have had a strong effort 
on that part.
    Our ADR program is part of a larger effort in the conduct 
of our overall EEO program of education, attention, and 
support. It is incorporated into our program and into our EEO 
personnel, who are the main players in the administration of 
our ADR program.
    With regard to the application of technology, we have 
worked on and are developing functionality for a system that we 
call EO-net, which is a data system which will provide for the 
collection of complaint information and, further, will provide 
for communication among and between EEO practitioners across 
the Air Force. They will be linked through this system, and we 
will be able to use this system for policy dissemination and 
discussion, including chat rooms. This is a secure, password-
protected system which responds to the sensitivity, in many 
cases, of EEO data.
    Our ADR system is critical to the effective agency 
operations. As you know, the Department of Defense has 
undergone significant downsizing, and, in the context of that 
downsizing, every employee performing at peak efficiency has 
become a premium issue.
    Workplace disputes are costly to productivity, and EEO 
complaints are among the most contentious and difficult of 
workplace disputes.
    We believe that ADR returns employees to productive status 
quickly, and thereby is critical to readiness and mission 
effectiveness in the Department of Defense.
    I would like to conclude my brief statement on these two 
points: ADR is working for us, and we applaud the EEOC's 
efforts to require its involvement in EEO complaint resolution 
processes. We have collected our experiences into what we call 
a compendium of best practices, which is available to all on 
the World Wide Web through our ADR World Wide Website--not to 
suggest that we have all the answers, but we have collected our 
experiences and made them available.
    We are in the process of building a 5-year ADR plan, which 
will continue our progress and continue to refine our 
    We would like to conclude on those comments.
    Mr. Scarborough. Thank you. We appreciate the testimony.
    [The prepared statement of Mr. Blanchard follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.073
    [GRAPHIC] [TIFF OMITTED] T8877.074
    [GRAPHIC] [TIFF OMITTED] T8877.075
    [GRAPHIC] [TIFF OMITTED] T8877.076
    [GRAPHIC] [TIFF OMITTED] T8877.077
    [GRAPHIC] [TIFF OMITTED] T8877.078
    [GRAPHIC] [TIFF OMITTED] T8877.079
    [GRAPHIC] [TIFF OMITTED] T8877.080
    [GRAPHIC] [TIFF OMITTED] T8877.081
    [GRAPHIC] [TIFF OMITTED] T8877.082
    [GRAPHIC] [TIFF OMITTED] T8877.083
    [GRAPHIC] [TIFF OMITTED] T8877.084
    [GRAPHIC] [TIFF OMITTED] T8877.085
    Mr. Scarborough. Ms. Hallberlin.
    Ms. Hallberlin. Good morning, Mr. Chairman and other 
distinguished committee members.
    I ask permission that my entire statement be entered into 
the record.
    Mr. Scarborough. Without objection, so ordered.
    Ms. Hallberlin. Thank you.
    REDRESS began about 6 years ago in three cities in the 
northern district of Florida. Today, REDRESS is available to 
every postal employee across the country in the U.S. Postal 
    I am going to focus my remarks on three things: how REDRESS 
works, how it is different from other mediation programs, and 
why it is successful.
    Here is how it works: when an employee contacts an EEO 
counselor, he or she is offered mediation in lieu of 
traditional EEO counseling. If an employee chooses mediation, a 
professionally trained mediator, not a postal employee, brings 
the parties together within 2 or 3 weeks, face to face, to 
solve their problem.
    The employee can bring any representative of their choice, 
which usually is a union official. The mediator acts as a 
facilitator and tries to help the parties understand each other 
and resolve their problems.
    The Postal Service uses exclusively mediators that are 
trained in the transformative model of mediation, and this is a 
distinctive difference from other organizations. The best way 
to explain the transformative model is to contrast it to the 
more-traditional model of mediation that you might be more 
familiar with.
    In a directive or valued mediation model, the mediator's 
role is to guide the parties toward settlement on terms that 
the mediator believes are best for the parties. On the other 
hand, in transformative mediation the mediator supports the 
parties' decisionmaking, allowing the parties to direct the 
process and to control the outcome of the mediation.
    Transformative mediation aims at supporting and addressing 
communication problems between employees and their supervisors. 
Resolving disputes is certainly an over-arching goal, but 
research suggests that the process of resolving disputes in a 
facilitative, transformative manner rather than directive 
creates better and long-lasting upstream effects in the 
    Over the past 18 months since REDRESS was implemented, 
approximately 13,000 cases have gone through mediation, and 81 
percent of these cases have been closed out.
    What do I mean by ``closed out?'' They were either 
resolved, withdrawn, or dropped by the employee.
    Another way of looking at it is that only 19 percent of 
mediated cases go on to become formal EEO complaints. In 
contrast, when complaints are not mediated, 44 percent--over 
twice as many--go on to become formal complaints. That is a key 
success factor. Of non-mediated cases, 44 percent become 
formal, but only 19 percent of mediated cases become formal. 
This is clearly not accidental.
    As highlighted in our written testimony, research studies 
indicate there is a strong correlation between the 
implementation of REDRESS and a drop in formal EEO complaints, 
as has been alluded to here today during this hearing.
    Here is how the big picture looks: between 1990 and 1997, a 
7-year period, formal EEO complaints at the Postal Service 
doubled. They went from 7,000 cases to 14,000 cases. Then 
REDRESS was implemented and the trend reversed.
    In 1999, for the first time in almost a decade, the number 
of formal EEO complaints at the Postal Service declined by 
2,000 cases, and the prediction is for a further reduction of 
at least another 2,000 cases this year.
    Another indication of success is the satisfaction shared by 
all the participants at the mediation table. We have analyzed 
over 26,000 exit surveys given to all participants at the end 
of every single mediation conducted at the Postal Service. 
Those surveys indicate that over 90 percent of supervisors, 
employees, and employees' representatives, who generally are 
union officials, are either satisfied or highly satisfied with 
the mediation process.
    What is truly remarkable is that there is no statistical 
significance in satisfaction between employees and their 
supervisors--both equally satisfied with the entire mediation 
    REDRESS has been a significant component in the Postal 
Service's efforts to improve the workplace environment, as it 
has contributed to the reduction of formal complaints, it has 
closed out the majority of cases, and has satisfied nearly all 
the people that come to the mediation table. The Postal Service 
hopes to continue to expand the program and make a positive 
impact on the workplace.
    Thank you.
    Mr. Scarborough. Thank you. I appreciate your testimony.
    [The prepared statement of Ms. Hallberlin follows:]
    [GRAPHIC] [TIFF OMITTED] T8877.086
    [GRAPHIC] [TIFF OMITTED] T8877.087
    [GRAPHIC] [TIFF OMITTED] T8877.088
    [GRAPHIC] [TIFF OMITTED] T8877.089
    Mr. Scarborough. Mr. Reed.
    Mr. Reed. Good afternoon, Mr. Chairman.
    I ask that my written statement be entered into the record.
    Mr. Scarborough. Without objection, so ordered.
    Mr. Reed. Chairman Joe Scarborough and distinguished 
members of the subcommittee, I would like to thank you for this 
opportunity to testify.
    In addition, I would also like to thank the chairman and 
also Congresswoman Norton and Congresswoman Morella for 
attending and speaking at the Blacks in Government Policy 
Conference last year.
    It is my privilege to appear as the president of Blacks in 
Government to present the views of African American government 
employees. I call this testimony my ``Nine Plus Nine 
Testimony''--nine potential issues and nine potential 
    I thank the chairman for his leadership in this vital area 
of public concern, and I would also like to thank the ranking 
member, the Honorable Elijah Cummings, and the Honorable Albert 
R. Wynn, for their leadership.
    I would now like to briefly summarize my written testimony.
    Discriminatory behavior is no longer sanctioned by the 
Government. Indeed, it is unlawful. But for a brief moment 
let's forget about the sordid history of racial oppression in 
America and let's, even for a moment, forget about African 
Americans, but only for a moment, and let's talk about unfair 
and wasteful government and let's talk about the money.
    In two notable cases, which clearly documented race and sex 
discrimination, it cost the Government a great deal of money. 
The Library of Congress recently paid $10 million and the Voice 
of America and U.S. Information Agency are about to pay more 
than $520 million as the result of class action race and sex 
discrimination lawsuits.
    If someone stole $10 million from the Government, what 
should happen to them? If someone stole $520 million from the 
Government, what should be their penalty?
    The executives of the Library of Congress, the Voice of 
America, and the U.S. Information Agency stole massive amounts 
of money from the public coffers. These crimes have had no cost 
to the Federal agencies involved and no personal penalties have 
been visited upon the offending parties. These title seven 
violations that result in losses of Federal money of any amount 
should be treated just like any other criminal acts and the 
offenders should have to pay substantial fines and/or go to 
    That is the big picture. Here are some details concerning 
what is wrong with the system that tells us how and why we 
generate these large payments of discriminate lawsuits.
    No. 1, the EEOC handles complaints in a way that makes it 
impossible to capture the full extent of employment 
discrimination in the Government.
    No. 2, in particular, nefarious techniques are used by the 
Government to eliminate some 60 to 70 percent of the complaints 
alluded to by Congresswoman Norton.
    No. 3, Federal agencies sabotage employees' EEO cases. 
Employees generally have no effective avenue for redress when 
this happens.
    And, No. 4, if more Federal employees were financially able 
to bear the cost of litigation, there would be a tidal wave of 
title seven lawsuits in Federal court today.
    And, No. 5, the programs of Government reinvention have 
compromised the weak EEO complaint process by providing more 
management autonomy, including the autonomy to discriminate 
without accountability.
    Agencies with class action complaints awaiting 
certification at the EEOC, such as the Department of Commerce 
since 1995, are implementing new personnel systems. Such 
systems give managers more flexibility and no accountability.
    No. 6, the EEOC does not monitor agency mismanagement of 
the complaint process. As an illustration, after settling the 
class action complaint involved in the black farmers, a recent 
Office of Inspector General report on the status of civil 
rights efforts to reduce the backlog of EEO complaints in the 
Department of Agriculture stated, ``The problem we noted before 
in the complaint resolution process also continues. Civil 
rights data bases remains an unreliable repository of 
information, and its case files are too slovenly--means 
careless in personal appearance--to ensure the availability of 
critical documents. A disaffected staff and a leadership vacuum 
have contributed to a system that cannot ensure complainants a 
timely hearing of their grievances.''
    No. 7, EEOC timeline guidelines for processing complaints 
are typically ignored by the agencies, while complainants often 
have their cases dismissed for similar violations.
    No. 8, by failing to mandate compliance with administrative 
procedures to end discrimination, the entire EEO process is 
undermined and managers have no incentive not to discriminate.
    No. 9, in a vicious assault on the whole EEO process, the 
Federal Government now provides professional liability 
insurance to protect Federal managers who may be charged with 
violating Federal employment discrimination laws.
    If Congress intends to send a clear message to Federal 
agencies that discrimination will not be tolerated, we urge 
this committee to seriously consider the following 
    No. 1, Congress should totally reinvent the EEOC and make 
it responsive and accountable to regulatory timeline.
    No. 2, the defendant agency should bear all expenses in 
cases in which the plaintiffs prevail.
    No. 3, Congress should implement a Government-wide policy 
that supports employee organizations and empowers them to play 
a greater role in civil rights policy within the Federal 
agencies. It is called ``diversity.''
    And, No. 4, Congress should require agencies' civil rights 
offices to be restructured so that civil rights directors 
answer directly to the agency head.
    No. 5, Congress should give the EEOC subpoena power over 
retired Government employees.
    No. 6, Congress should take the decisionmaking authority 
and the EEO complaint process away from agencies and place it 
in the EEOC.
    No. 7, Congress should require the EEOC to impose sanctions 
against managers and supervisors who are found to be in 
violation of title seven of the Civil Rights Act of 1964.
    No. 8, Congress should repeal Federal law providing for the 
payment of premiums for professional liability insurance for 
Federal managers.
    Finally, No. 9, members of the committee may wish to urge 
the EEOC to write an amicus brief in support of Matthew Fall. 
Mr. Fall is a Deputy U.S. Marshal who won a discrimination case 
against the Department of Justice's U.S. Marshal Service. 
However, the landmark $4 million jury award has been decreased 
to $300,000. Mr. Fall is currently appealing the case, and 
rightfully so.
    Sir and committee, I thank you for your time.
    Mr. Scarborough. Thank you so much.
    [The prepared statement of Mr. Reed follows:]

    [GRAPHIC] [TIFF OMITTED] T8877.090
    [GRAPHIC] [TIFF OMITTED] T8877.091
    [GRAPHIC] [TIFF OMITTED] T8877.092
    [GRAPHIC] [TIFF OMITTED] T8877.093
    [GRAPHIC] [TIFF OMITTED] T8877.094
    [GRAPHIC] [TIFF OMITTED] T8877.095
    [GRAPHIC] [TIFF OMITTED] T8877.096
    [GRAPHIC] [TIFF OMITTED] T8877.097
    [GRAPHIC] [TIFF OMITTED] T8877.098
    [GRAPHIC] [TIFF OMITTED] T8877.099
    [GRAPHIC] [TIFF OMITTED] T8877.100
    [GRAPHIC] [TIFF OMITTED] T8877.101
    Mr. Scarborough. I want to begin now my questions with Mr. 
Blanchard, and I want to commend you for the great work that 
the Air Force has done.
    Earlier I held up a chart of the administrative process for 
the EEO complaint, and you had submitted that to me. Is it your 
testimony here today that this is actually a simplified version 
of this process?
    Mr. Blanchard. It is a reflection of the process as we 
understand it, without all of the footnotes and details that 
would be necessary to fully explain each block on the chart.
    Mr. Scarborough. OK. Without objection, I am going to put 
this into the record today. It is very interesting.
    I wanted to ask you some questions regarding your 
successes. Certainly, you have heard the testimony of Mr. Reed 
and heard the testimony of others talking about how there has 
not seemed to be accountability from certain Federal agencies. 
I know especially earlier today we had Congressman Wynn talk 
about problems with the Department of Agriculture. Also, I 
believe Interior has been cited, and other agencies.
    I take it when the Air Force was developing their approach, 
their very successful approach, you all obviously looked at 
what worked and what didn't work in other agencies. Is that an 
accurate statement?
    Mr. Blanchard. Yes, sir.
    Mr. Scarborough. Can you just give us a couple of examples 
of the biggest differences of your program and, let's say, 
Department of Agriculture or Interior's programs that have 
failed, and how has that accounted for your successes and their 
    Mr. Blanchard. Let me answer that this way. I think our 
experience has been developed over about a 6-year period, and 
we have learned from the process as we have gone along during 
that 6-year period.
    These are difficult cases, as I mentioned, and they involve 
sensitive employee management relationships within the 
workplace. We have attempted, in looking at other agencies' 
experiences, to learn what we can from them, but we have really 
developed what we think works within the Air Force.
    Within the Air Force, I think each agency--and I guess I 
would argue for flexibility in agency ADR programs for agencies 
to develop ADR programs that are reflective of the culture of 
that agency. I think it is important within the culture of that 
agency for the agency to have the flexibility to build a 
program that optimizes that kind of performance.
    Within the Air Force, we have tried to build a program over 
the years that does reflect and promote facilitation and 
mediation as the primary methods of ADR. We have had success 
with that. We are learning about it as we go along, but it 
doesn't stand alone. It stands in conjunction with a very 
deliberate attempt to educate managers, supervisors, and 
employees about the process.
    We have trained and talked to over 1,000 supervisors. Joe 
McDade goes out periodically and meets with line managers to 
educate them about the program. We issue guidance to managers 
and supervisors through the formal communication process about 
the program. These are all parts of the central program.
    We train people who do the mediation and facilitation work 
for us. We have developed effective training courses on 
mediation and facilitation in our school down in Alabama, and 
we continually make those courses available to people to 
sharpen their skills.
    Each case is different. Each case requires its own effort. 
But that is the way our program works. That is the way we have 
been successful.
    I think each agency has to really develop their own way 
here in terms of the overall organization of an ADR program.
    Mr. Scarborough. Ms. Hallberlin, I wanted to ask you a 
question. You have given the committee some remarkable numbers 
about the Post Office, talking about 13,000 cases with the 
mediation, 81 percent closed out, only 19 percent still active. 
That is down from 44 percent for those cases that did not go to 
    What is the biggest lesson you have learned regarding 
mediation, ADR, or REDRESS, as you all call it, and what can we 
gain from that as we try to apply? What would you recommend we 
apply to all Federal agencies to keep their feet to the fire to 
make sure we come back 5 years from now and the situation is 
not as bad as it was in 1995?
    Ms. Hallberlin. In answer to your first question, what is 
the greatest lesson I learned, I am continually amazed at the 
remarkable transformation or shifts that happen to people when 
they are brought face-to-face to talk about their problems 
within a few weeks of it arising. What continually surprises me 
is, when you bring someone to a table with someone who is 
acting as an outside neutral, and when they start to talk to 
each other, how much they can shift their impression and 
understand each other more and resolve what began as maybe 
simple and disturbing disputes, resolve them early before they 
go throughout and drag in the system and become complicated and 
entrenched and much larger.
    So that is a lesson I have learned is the sooner you bring 
people together and support them in their own conversation and 
dialog, they, themselves, have tremendous capacity to resolve 
their problem.
    What can you do for other Federal agencies? I think you can 
continue to support alternative dispute resolution in Federal 
agencies. We have seen it in the Postal Service as a tremendous 
device to resolve complaints early and to the satisfaction of 
those who have the problems.
    So, to the extent that other agencies are supported in this 
initiative, we are very similar to my colleague here, Mr. 
Blanchard. We have been working at this for 6 years. It is a 
long process. It is complicated.
    We also do tremendous outreach efforts and training. We 
have trained over 15,000 employees and supervisors. We trained 
outside mediators who come in and mediate for us. We train 
supervisors. We train our EEO professionals, our labor 
representatives. We have invited the unions.
    Just as you had said, this is a comprehensive effort. You 
can't just drop a program on an agency. You have to build it 
brick by brick and always work at incorporating and partnering 
with all your stakeholders who are involved.
    Mr. Scarborough. OK.
    Let me ask you, Mr. Reed--I appreciate your testimony. 
Obviously, your testimony, the part that will cause most people 
to stand up at attention is your statement that certain 
violations of title seven should be criminalized. Is that an 
accurate reflection of your testimony? Do you think Congress 
should pass a lawmaking violations of title seven and also 
discrimination in the Federal Government a crime punishable by 
jail time?
    Mr. Reed. Exactly.
    Mr. Scarborough. OK. All right. Would you like to--for 
those Members of Congress who may not agree with you and would 
want to be persuaded, could you give me a couple of examples of 
how you think this would help, obviously, stop discrimination 
in the work force?
    Mr. Reed. Well, the key thing to title seven is enforcement 
and accountability. If there is no incentive to enforce the 
mandate by title seven, and that is the vehicle by which these 
managers and/or supervisors are managing the process, then, 
therefore, why do you have a process in the first place?
    It is an issue, as we go now into the NPR--national 
partnership for reinventing Government that started back in 
1993, doing more for less, the No. 1 criteria in 1993 was to 
decrease the work force. I think the administration stated that 
we wanted to remove 252,000 positions, which they did. I think 
it is now at 386,000. But the No. 1 vehicle within that process 
was called ``privatization,'' and privatization, the No. 1 
vehicle is contracting out.
    So when you privatize and outsource and downsize and are 
contracting out everyone, and not having the accountability to 
enforce the process by which these folks are being hit against 
in terms of discrimination, then where are you?
    Mr. Scarborough. Yes. You know, we have heard today from 
testimony from the first two panels the discrimination in the 
work force and the EEOC's failure to redress such 
discrimination has been bad for some time. It was bad in the 
early 1990's, 1995. Somebody that testified in our second panel 
today said it was awful back then, inefficient, time-consuming, 
and he has come by and he testified a few hours ago that it is 
even worse today than it was in 1995.
    My question is: who is to blame here? In your opinion, in 
this whole reinventing process, where does the blame lie? Does 
it lie specifically with the EEOC, or does it lie with 
managers, does it lie in individual agencies? Who is to blame? 
Somebody has got to be to blame for this. Who is it, in your 
    Mr. Reed. The blame should lie with the ones that are 
circumventing the process. When you pull out the issue of 
fairness in the Federal EEO complaint process and then you have 
to go before a manager and/or a supervisor that may redress the 
situation in which you stated that you have an EEO case, if 
they come with a basis, as the ranking member stated, a basis 
and an issue of a complaint, they go before their EEO managers 
and their EEO officers, and they walk out of a room. When they 
went in there with one issue, they come out and present another 
issue, and then, when he comes before the EEOC, cases are 
thrown out of court.
    It is just a matter of how you manage the process and how 
you circumvent the process. So who is to blame? Those are the 
ones--the ones that are to blame are the ones that circumvent 
the process to their own gain.
    Mr. Scarborough. I am going to have some followup questions 
that I can't ask right now because of time, but followup 
questions regarding, Mr. Reed, your proposal on the 
criminalization of title seven violations. I am going to send 
it to all three of you all and have all of you comment on the 
positive aspects and also what you see as some possible 
problems with that. And if you could respond within 2 weeks, 
that would be great.
    Mr. Cummings.
    Mr. Cummings. Thank you very much.
    Mr. Reed, as I was looking through your recommendations--
and maybe I missed it--I didn't see anything about ADR. I don't 
know whether that would have been included in the whole 
revamping of EEOC. I was just wondering, give me your opinion 
on ADR.
    Mr. Reed. Personally, I believe the ADR is a pretty good 
vehicle, especially if you can satisfy the complaints early on 
in the process without them becoming formalized. So in my 
revamping of the EEOC I would also include the ADR. No 
    Mr. Cummings. So, you know, as I listen to Ms. Hallberlin, 
what you say really makes sense of why the ADR process would 
work, and, coupled with what you just said, Mr. Reed, it does 
make some sense.
    I think if you get to people early before it festers--if 
something is affecting my whole life then I get a chance to 
talk to my sister-in-law, and then the people on the job, and 
the next thing you know all of that adds to the whole process 
and it becomes much more difficult. I mean, not only that, as 
time goes on I see myself losing more benefits and more 
opportunity, and I am talking about it constantly, but I am 
never facing the very person who is accusing me or I am 
accusing of. I guess that can kind of lead to some real 
    Is that why you say that if you can get it early?
    Mr. Reed. Yes, sir.
    Mr. Cummings. So you don't have any problem with ADR----
    Mr. Reed. No, I do not.
    Mr. Cummings [continuing]. As long as you get to it early?
    Mr. Reed. No, I do not. Yes, sir.
    Mr. Cummings. Ms. Hallberlin, just going back to some 
things that you said, do you find that people--do you find the 
morale higher? I mean, in other words, Mr. Reed was just 
talking about how when a person faces their accuser, then the 
accuser--he is talking about the hearing process--and then they 
go and come out and next thing you know you have got more 
problems. But, I mean, do you find the process here, when you 
go through the ADR, that you are able to get beyond that and 
people move forward? Or do you see--and I don't know whether 
you have been working with it long enough to even be able to 
answer this question--do you see things keep coming back and 
    Ms. Hallberlin. Actually, we are looking at long-term 
effects of the program. We have some information now. We hope 
to have more later.
    But what is really encouraging is that three-quarters of 
the participants around the mediation table indicate that they 
believe that the experience of the mediation will have a long-
term impact on the relationship they have with the person at 
the mediation table. That is very heartening to the Postal 
Service management, who is----
    Mr. Cummings. Do you mean the mediators say that? Is that 
what you mean?
    Ms. Hallberlin. No. In the exit surveys I alluded to 
earlier, the 26,000 exit surveys, we track--we have questions 
that ask both the employees and their supervisors at the end of 
mediation, ``Do you think today's experience at mediation will 
have an impact, a positive impact on your long-term 
relationship with either the supervisor or the employee?'' And 
over three-quarters of the people that go to the mediation 
table respond yes, they do. That is very heartening to us.
    Mr. Cummings. That says a lot.
    Ms. Hallberlin. That means that within those concentrated 
hours, 3 or 4 hours in which they are allowed to freely talk to 
each other with the assistance of an outside mediator, they 
have begun to understand each other more. They have heard each 
other. They have recognized the differences of what each other 
means and their intents, and they hopefully take that with them 
and believe that, yes, when they go back to the work on the 
floor things will be better.
    Mr. Cummings. Mr. Blanchard, is your experience similar?
    Mr. Blanchard. Yes, sir, it is. We certainly believe there 
is a therapeutic effect to the ADR process in the workplace. We 
don't have hard data. We have anecdotal data coming from 
individual cases and individual case examinations of 
workplaces, but our experience has been very similar to Ms. 
Hallberlin's, as she describes it--that there is a positive 
effect to workplace communications, and especially if you 
consider that a number of the complaints that we deal with in 
the ADR process in the early stages, as has been indicated, may 
not be exactly in the right process, may not be exactly EEO 
kinds of complaints. They may be communications problems, but 
they may not be based on a protected category of activity.
    The reality is that the ADR process allows those complaints 
to have a hearing, to have an airing, and through that process 
people go back to work feeling like they had their opportunity.
    Our facilitation process, which involves our EEO 
counselors, has actually enabled them to gain stature in the 
workplace, as well, because they become peacemakers and end up 
bringing parties together around a solution, which is to the 
good of the overall process in the end.
    Mr. Cummings. You know, I would imagine that if you could 
come up with a win/win situation, as opposed to, ``I beat 
you,'' it has got to be better, on a long-term basis, 
especially when you have got to work with that person every 
    Ms. Hallberlin. Exactly.
    Mr. Cummings. You spend more time with that person than you 
spend, a lot of times, with your own family. It just seems like 
that would make a lot of sense.
    Let me go back to you, Mr. Reed. You had said one of your 
recommendations was to subpoena retired employees. Can you help 
us on that one--supervisors, or--what are your recommendations? 
The ability to subpoena them in?
    Mr. Reed. A key thing--you just want to make sure, when you 
have a bona fide case, every entity that has input to that 
particular case is able to be brought to the table. And so when 
you have a Government employee that is no longer with the 
Government and the EEOC cannot bring that person back, then, of 
course, that is knowledge and that is testimony that you do not 
have that could help your particular case.
    Mr. Cummings. Now, when you all were here a little bit 
earlier, when you heard the problems about agencies not 
providing sufficient information to EEOC, did you all--were you 
all here?
    Ms. Hallberlin. Yes.
    Mr. Reed. Yes, sir.
    Mr. Blanchard. Yes.
    Mr. Cummings. I mean, did that surprise you? Mr. Reed.
    Mr. Reed. Negative.
    Mr. Cummings. Why not?
    Mr. Reed. Well, study after study after study are saying 
the same thing. And when you come to this table before this 
microphone and come before the committee and say the same 
things over and over again, it is not that shocking, sir.
    Mr. Cummings. Mr. Reed, do you have any confidence in what 
the gentleman from EEOC said about what we will see in a year?
    The reason why I am asking you this is not to create any 
kind of one person going against another; it is just that when 
we sit down it would be nice for us to know what you would like 
to see, too. And so I am just curious. I mean, the testimony 
you heard, did it give you any confidence? And what are your 
concerns, if any, that when we come back here a year from now, 
what are you afraid that we will or will not see, and what can 
we do to make sure that doesn't happen? Does that make sense?
    Mr. Reed. Yes, sir. No. 1, I do have confidence in what the 
EEOC stated in terms of what is going to happen next year, 
because when he did refer to the stakeholders, I would like to 
state that Blacks in Government is one of the stakeholders. 
When they developed their inter-agency Federal task force, I am 
a member of the senior leadership committee, so I am allowed to 
bring issues to the table. So the key thing is--I know he 
alluded to resources, he alluded to this and he alluded to 
that. If we stay focused on what we have to do, we have all the 
stakeholders presenting the whole 9 yards, I believe if the 
stakeholders on the issues and they stay focused, in terms of 
what they are trying to do within the EEOC, hopefully we will 
see a difference next year.
    Mr. Cummings. Is there anything that we can do to help make 
that process get to where you are hoping that it will go? In 
other words, you know, it looks like the mechanism is set up to 
get it done. I am so happy to hear that you are part of the 
process, and apparently you feel that you are a meaningful part 
and viewed as a meaningful part of the process, along with 
    Now, is there anything that we can do from our side to help 
you all be effective? I guess that is----
    Mr. Reed. Is that short of an enacting legislation?
    Mr. Cummings. Sort of, but, I mean, if there is some 
legislation, we would like to know about that, also.
    Mr. Reed. Well, I am quite sure with my legislative team I 
could bring forth to this committee in written form some better 
    Mr. Cummings. Why don't you do that?
    Mr. Reed. Yes, sir.
    Mr. Cummings. Have you looked at the goals for the EEOC 
    Mr. Reed. On page 12?
    Mr. Cummings. Yes, sir.
    Mr. Reed. Yes, sir.
    Mr. Cummings. And did you have any--I mean, how did you 
feel about what Ms. Norton said about those goals?
    Mr. Reed. Ms. Norton was right on track in terms of how she 
expressed, because Ms. Norton has been in the process for a 
long time.
    Mr. Cummings. Yes.
    Mr. Reed. But you have also got to bear in mind that I know 
Mr. Hadden, who has only been on board for a short period of 
time, has inherited this process.
    The fact is that Chairwoman Ida Castro--they are now 
bringing in the stakeholders, they are going to the 
communities, and I hope by what we bring to the table when we 
make recommendations to this committee in written form, it is 
taken true to light, and hopefully maybe the EEOC can act upon 
    Mr. Cummings. Mr. Blanchard, last but not least, when 
people get through the ADR process, do you--I mean, is there 
any way for you all to measure the morale of your--I mean, is 
there any kind of analysis you do?
    Mr. Blanchard. We are sharpening our ability to do that. We 
do unit climate assessments in units now that take into account 
the overall EEO climate within an organization, and ADR gets 
picked up, to some degree, in those kinds of assessments. But 
we also asked the Air Force audit agency to conduct a 
comprehensive review of our ADR program, and we have got that 
review. We are studying those results and looking for ways that 
we, as we implement our 5-year ADR program--which I have to 
point out applies not only to the application of ADR in 
employment disputes, but also in contract disputes and across 
the board of interaction kinds of disputes--as we develop that 
5-year plan, we will incorporate metrics in that 5-year plan 
that will speak to measuring how ADR affects the workplace.
    Mr. Cummings. But you all know we can do better at EEOC. Is 
that a fair statement?
    Mr. Blanchard. In this area, sir, we can always do better.
    Mr. Cummings. Ms. Hallberlin.
    Ms. Hallberlin. We can always do better.
    Mr. Cummings. Mr. Reed.
    Mr. Reed. Yes, sir.
    Mr. Cummings. One other thing, Mr. Reed, I would like for 
you to submit those recommendations to us on the legislation 
that you talked about.
    In conclusion, Mr. Chairman, it is interesting. You know, I 
think sometimes the solutions to the problems are easy. I mean, 
we know the solutions. It is like when my daughter was 2 years 
old and she would put her hand up to her face and play hide-
and-go-seek, and she would put her hand up to her face and say, 
``Daddy, you can't find me,'' and she was standing right in 
front of me. Sometimes I think as adults we do the same thing. 
The solutions are there. The question is whether we have the 
will to do it. It seems like you all have--you know, at least 
you are going in that direction to do it.
    The last thing I would just leave us with is I think we all 
realize we only have one life to live, and this is no dress 
rehearsal, and people are just trying to live the best lives 
that they can while they are living.
    And so I would hope that, you know, maybe the things that 
we do, Mr. Chairman, can continue this process of trying to--
sometimes we have to almost help people get married. That is 
what we are talking about here, this ADR stuff--we are actually 
causing people to sit down and look at each other and, even if 
they start off as being, you know, mean, by the time they end 
up and hear everything out and hear why one person did 
something, misunderstanding there, the next thing you know, you 
have got some type of resolution that is so very important for 
the whole agency.
    The most important thing, I think the thing that we leave 
out of the formula, is that when we are able to do all of those 
kind of things we all benefit. The country benefits. The 
employees benefit. Their children benefit. Those are things 
that are very important.
    So I just want to thank all of our witnesses for being so 
helpful, and we will do everything in our power to make sure 
that we pursue this matter aggressively.
    Mr. Scarborough. Thank you, Mr. Cummings. I want to thank 
you, also. You and Mr. Wynn have certainly moved this process 
along to this point. I think it is a great start.
    I want to thank our witnesses.
    Let me ask you, Mr Blanchard, you had said that you have a 
Website that has a collection of best practices. What is the 
Website address there?
    Mr. Blanchard. Let me ask Mr. McDade.
    Mr. Scarborough. Ask Mr. McDade.
    Mr. McDade. WWW.ADR.AF.MIL.
    Mr. Scarborough. WWW.ADR.AF.MIL?
    Mr. McDade. Right.
    Mr. Scarborough. OK. We will go to that and look at that.
    Mr. McDade, we thank you for all your help in this process.
    Your father wanted to ask you some very difficult 
questions, but we refused to let him get a microphone under 
oath, going back to high school. But we want to thank you, Mr. 
McDade, for coming. The Congressman, obviously, has been a 
great man who had a long, proud, dignified career, and it is an 
honor just to have you up here with us.
    I would thank all of you for coming and thank you for your 
    We are going to leave the record open for 2 weeks for any 
additional questions that any Members may have or any 
    I thank you. I thank everybody for coming today. This has 
been very informative, and it is beginning a process where we 
are going to fix this.
    We are adjourned.
    [Whereupon, at 1:31 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record